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SZNHQ & Anor v Minister for Immigration & Anor [2009] FMCA 439 (12 May 2009)

Last Updated: 12 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHQ & ANOR v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of decision of Refugee Review Tribunal – whether the Court has jurisdiction – first applicant received physical possession of decision record at handing down – inference to be drawn that second applicant received physical possession of the decision record at particular time – application made out of time – application for extension of time made out of time – application dismissed.


SZKNX v Minister for Immigration and Citizenship [2008] FCAFC 176
SZKKC v Minister for Immigration & Citizenship [2007] FCAFC 105
WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50
SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862

First Applicant:

Second Applicant:
SZNHQ

SZNHR

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 534 of 2009

Judgment of:
Nicholls FM

Hearing date:
7 May 2009

Date of Last Submission:
7 May 2009

Delivered at:
Sydney

Delivered on:
12 May 2009

REPRESENTATION

Appearing for the Applicants:
In person

Solicitors for the Applicants:
In person

Appearing for the Respondents:
Mr A Markus

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application made on 6 March 2009 is dismissed.
(2) The applicants pay the first respondent’s costs set in the amount of $3,000.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 534 of 2009

SZNHQ

First Applicant


SZNHQR

Second Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. I have before me an application made on 6 March 2009, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 7 February 2008, and handed down on 28 February 2008, which affirmed the decision of a delegate of the respondent Minister to refuse protection visas to the applicants.
  2. The Minister’s Response to the application, filed on 20 March 2009, is that the application be dismissed on the grounds that the Court lacks jurisdiction, as it has been filed outside the time limits prescribed by s.477 of the Act.
  3. It is clear that the Court’s jurisdiction is the threshold issue before the Court.
  4. The Court has before it a bundle of relevant documents (the Court Book – “CB”) which was filed by the Minister and from which the following relevant background may be extracted.

Background

  1. The applicants are citizens of Malaysia who arrived in Australia on 28 August 2007 (CB 4) and applied for protection visas on 9 October 2007 (CB 1 to CB 46). They are mother (“the first applicant”) and son (“the second applicant”). Both applicants submitted their own claims to be refugees and were included in the same application.
  2. This application was refused on 19 November 2007 (CB 53 to CB 62). The applicants applied for review by the Tribunal on 23 November 2007 (CB 67 to CB 70). I note that on the application for review in “Section F” the following appears:
  3. Below this, in the space titled “Applicant 2” appears a signature and the date “23/11/07” (CB 70).
  4. Only the first applicant appeared before the Tribunal to give evidence on 5 February 2008 (CB 88, CB 125). The Tribunal signed its decision on 7 February 2008.
  5. By letter dated 7 February 2008, and addressed to the first applicant, the Tribunal invited both the applicants to attend the handing down of its decision set for 26 February 2008 (CB 104 to CB 105). The date for the handing down was subsequently changed to 28 February 2008.
  6. Three letters, all dated 8 February 2008, are relevant. One of these letters (being the second invitation to the handing down) was addressed to the first applicant (CB 107 to CB 108), one was addressed to the second applicant at the first applicant’s stated address (CB 109 to CB 109), and the other was addressed to the second applicant at a different residential address (CB 111 to CB 112). Another letter was sent on 21 February 2008, confirming the date of the handing down and advising the first applicant to: “... inform: Mr [the second applicant’s name]” stating that: “any reply will be regarded as a joint response unless we are advised otherwise” (CB 116).
  7. On 28 February 2008, the first applicant attended the handing down. The second applicant did not attend (CB 118).
  8. By letters dated 28 February 2008, one addressed to the first applicant (CB 119), the other addressed to the second applicant (CB 133), the Tribunal notified the applicants of its decision. The letter addressed to the first applicant follows:
  9. The letter addressed to the second applicant is in the same form as the text above, but substitutes “and Mr [the second applicant’s name]” for “and Miss [the first applicant’s name”. Two copies of this letter were sent by registered post to the second applicant, one addressed to the address for service, the other to a previous address (CB 133, CB 134). [See further below.]

Application before the Court

The applicants

  1. The applicants applied for review of the Tribunal’s decision by this Court on 6 March 2009.
  2. The first applicant appeared at the first Court date in this matter on 24 March 2009. Given that the Minister’s response had already been filed, both applicants should have been aware that the Minister asserted that their application was made out of time (as it was made contrary to the requirements of s.477) and the consequences of this. It appeared that the first applicant represented the second applicant at the first Court date.
  3. In any event, it was made clear at the first Court date that the issue of jurisdiction was the threshold issue for the Court to consider. I gave the parties the opportunity to make written submissions and this issue was set down for hearing on 12 May 2009.
  4. Two communications have been received from the applicants since that time (sent by facsimile transmission to the Court’s Registry):
    1. A handwritten note received on 29 April 2009 said to be from both applicants but which appears to be written from the perspective of the first applicant, which makes certain assertions about the “son’s father”. Nothing is said about the issue of the Court’s jurisdiction to hear their application.
    2. The second communication, signed by the first applicant, seeks an adjournment of the matter on the basis that: “I have not finish my documents. I need more time to finish it.”

The Minister

  1. The respondent Minister has provided written submissions on the issue of jurisdiction.
  2. Essentially, the respondent submits:
    1. The first applicant received “actual” notification of the decision at the handing down of the Tribunal’s decision on 28 February 2008 (with reference to the “Handing Down Information Form” at CB 118 which, it is submitted, is signed by the first applicant and with reference also to the Tribunal’s Case Note appearing at CB 135, which stated that the “applicant signed for the decision”). This was “actual notification” because she was “physically” given a copy.
    2. The application to the Court was not made within 28 days of the Tribunal’s handing down, i.e. 28 February 2008 as required by s.477.
    3. The Court does not have power to allow an extension of time because the application was not made within 84 days from the date of 28 February 2008.
    4. It can be inferred that the second applicant physically received the decision record soon after the handing down because both the applicants lived at the same address and the first applicant was physically handed a copy of the decision record at the handing down.
    5. The second applicant would have at least received the decision record soon after the handing down because copies were sent by the Tribunal by post to him.
    6. In any event, both applicants stated in the application to this Court, which they both signed, that they received notification in “Feb 2008”.
    7. As both applicants received actual notification “on or about 28 February 2008”, and the application was not made within 28 days of this date, and as no application for an extension of time was made within 84 days of this date, the Court does not have jurisdiction to hear the application.
  3. The Minister relies on the authority of SZKNX v Minister for Immigration and Citizenship [2008] FCAFC 176 for the proposition that:

Before the Court

  1. At the hearing on jurisdiction before the Court the first applicant appeared unrepresented. She was assisted by an interpreter in the Mandarin language. The second applicant did not appear but the first applicant stated that she appeared on his behalf as his representative. Mr A Markus appeared for the respondent Minister.
  2. When asked to explain why the Court should grant the adjournment that was being sought, the first applicant said that she required more time to obtain certain “documents”. When asked what documents she wanted to put before the Court, the applicant referred to a “CD”, which I understand to be a recording of the proceedings before the Tribunal. She further elaborated by telling the Court that there were certain things said to her at the Tribunal hearing that were not clear, that there had been some mistakes, that the decision was “wrong”, that the interpreter had interpreted aspects incorrectly, and that the adjournment was necessary so that she could get her son, or someone else, to assist her.
  3. I explained to the first applicant that she had not addressed the threshold issue before the Court. Namely, whether the Court had jurisdiction to hear her application. I asked the first applicant whether she had read the Minister’s written submissions and she indicated that she had not. I briefly adjourned on two occasions during the hearing to enable the applicant to have the submissions translated for her.
  4. As the applicant indicated that she “sometimes” had trouble understanding the accent of the interpreter arranged by the Court, I arranged for another interpreter to attend and translate the documents in the Mandarin language. That is, the submissions were translated for her by two different interpreters.
  5. In all, I was satisfied that the level of interpretation provided before the Court was, at the very least, adequate. The first applicant was immediately responsive to questions and did not appear to seek clarification from the interpreter. In any event, I assured her that she should indicate to the Court if she was unable to proceed.
  6. In response to the submissions, and in relation to the jurisdiction issue, the first applicant explained that she had sent “a letter” to the Court indicating that the reason that her application was filed out of time was because both she and her son had been sick at the relevant times.
  7. This appeared to be a reference to another handwritten note, sent by facsimile transmission to the Court by the applicant and dated 9 February 2009, which predates the application to the Court on 6 March 2009.
  8. In any event, the “letter” attached a medical report from a clinical psychiatrist. It was dated 17 March 2008. [This was marked as Applicant’s Exhibit – “AE”.]
  9. The medical certificate (even though nearly a year old) was plainly put to support the applicant’s statement in her “letter” as to why there had been delay in the making of the application to the Court:
  10. Mr Markus submitted that the medical certificate attached to the letter was lacking in detail as to the time of the first applicant’s incapacity. He also submitted that there was no medical evidence before the Court of the son’s illness. In any event, he submitted that the provisions of s.477 do not allow the Court discretion to extend the period beyond the number of days specified in that section, even if it could be established that both the applicants were ill at the relevant times.
  11. When given a chance to respond to this, the applicant asserted that there was no medical evidence of her son’s illness because he refused to see a doctor.
  12. When I stressed to the applicant the second aspect of the Minister’s submissions (that even if it could be established that both applicants were ill during the time at which they could have lodged the application, or lodged the application for an extension of time, the Court could not extend the time beyond what was specified in s.477), and that it appeared that they had received actual notification in February 2008, she claimed that the second applicant did not receive physical possession of the Tribunal’s decision record as he did not attend the handing down with her.

Adjournment

  1. The critical issue, as explained to, and understood by, the first named applicant at the hearing, is whether the Court has jurisdiction to hear the applicants’ application.
  2. The first applicant did not assist further on this issue at the hearing. The applicants have not put anything before the Court to warrant any further time to be provided to them to prepare arguments (or even any other material) on the issue of jurisdiction. I am satisfied that with reference to “AE”, at least the first applicant will understand that as at February 2009, the date of her “letter” to the Court, that the issue of the timing of her application to the Court and the “delay” was at issue, an issue which she sought to explain from the very beginning.
  3. The applicants have had at least since that time (6 March 2009) and certainly from the time of the first Court date (25 March 2009) to have sought legal advice on this issue or to have otherwise prepared to deal with the Minister’s Response.
  4. In any event, I am of the view on what is before the Court that, for the reasons that follow, the application is incompetent and that the Court lacks jurisdiction. Any further postponement of the hearing would be a futile exercise.

Consideration

  1. The current version of s.477 of the Act (amendments inserted by Migration Legislation Amendment Act (No. 1) 2009 (Act No. 10 of 2009)) applies only to applications made to the Court on or after 15 March 2009. As the application was made on 6 March 2009, the previous version of s.477 applies and is as follows:

The first applicant

  1. In relation to the first applicant, it is clear from the material before the Court that she attended the handing down of the Tribunal’s decision on 28 February 2009 and appears to have acknowledged receipt of the Tribunal’s decision and its reasons on that date (CB 118). Nor did the applicant otherwise assist before the Court.
  2. In SZKKC v Minister for Immigration & Citizenship [2007] FCAFC 105 (“SZKKC”) the Full Court found (with reference to s.477) per Buchanan J at [37] that the sole method of “actual (as opposed to deemed), notification” of the Tribunal’s statement required by s.430(1) to be prepared by the Tribunal, is delivery by hand. Gyles J, considered that the High Court judgment in WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 stood for the proposition that actual notification to an applicant of a Tribunal decision requires physical delivery of a written statement.
  3. In SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176 (“SZKNX”), a subsequent Full Court (per Sundberg, Emmett and Tracey JJ) distinguished the circumstances in SZKKC (and SZJMA, which was considered at the same time) on the basis that the applicants in those cases had commenced proceedings in this Court within the specified time after coming into physical possession of the Tribunal’s decision record and reasons. That was found not to be the situation in SZKNX (at [23]).
  4. The Full Court found in that case that the factual situation was that the applicant had physical possession of the Tribunal’s decision record at an earlier time (at [24]) and that:
  5. I note also the reference to SZKNX as referred to in SZFMW v Minister for Immigration and Citizenship [2008] FCA 1862 at [17] (per Bennett J):
  6. In the present case the first applicant attended the handing down and was given actual (as opposed to deemed) notification. Both within the reasoning of SZKKC and SZKNX, the applicant attended the handing down and came into physical possession of the decision record on 28 February 2008. The application to the Court was made on 6 March 2009. It was made well outside the 28 day period stipulated in s.477(1) for the making of such applications.
  7. The applicant also seeks an extension of time, pursuant to s.477(2), within which to make her application to the Court. She submitted that due to her illness she was unable to make her application at an earlier time.
  8. I note that the medical certificate, which she puts in support of her claim, is dated nearly a year before the date of her application to the Court. While that certificate makes reference (at that time) to ongoing treatment, no other evidence has been put before the Court to address the subsequent time.
  9. In any event, as Mr Markus submits, even if such evidence were to be produced, this Court does not have the jurisdiction to extend the time for the making of the application beyond a further 56 days from the expiry of the initial 28 day period. The application for an extension of time, in the circumstances, must be refused.
  10. In all, therefore, the Court has no jurisdiction to hear the application of the first applicant. Her application should therefore be dismissed now.

The second applicant

  1. In relation to the second applicant, it is clear from the material before the Court that he did not attend at the handing down of the Tribunal’s decision (see CB 117, CB 118, CB 135).
  2. However, the evidence before the Court shows that:
    1. On or about the relevant time, he resided at the same address as the first applicant (see CB 125). As at 5 February 2008, the first applicant confirmed to the Tribunal that her son (the second applicant) resided at the same address.
    2. The Tribunal did sent its decision record to the second applicant by registered post on 28 February 2008 to the address for service as provided in the application for review (CB 134 and CB 69), and also to an address notified as the change of address by the first applicant on 19 December 2007 (see CB 133, CB 75).
    3. It can be reasonably inferred from what the first applicant subsequently told the Tribunal on 5 February 2008 that the change of address related to her son as well. In any event, the letter of notification enclosing the Tribunal’s decision was sent to both addresses.
    4. Further, the application to the Court signed by both applicants asserts that notification of the Tribunal’s decision was received on: “Feb. 2008.” In relation to the second applicant, this is consistent with the dates of the letters sent by the Tribunal to him.
    5. The first applicant physically received the decision record at the handing down on 28 February 2008 (CB 118). The Tribunal’s covering letter of 28 February 2008 (CB 119) advised that the notification of the decision was directed to both applicants.
    6. I am satisfied that at that time the applicants lived at the same address. It can be inferred from the material before the Court that the mother acted on her son’s behalf before the Tribunal in the conduct of their application:
      1. The first named applicant made submissions on her own behalf, but also on her son’s behalf (CB 74).
      2. While the second named applicant was invited to the hearing (CB 76) she indicated, on his behalf, that he did not want to attend (CB 83 and CB 87).
      3. He did not attend (CB 88).
      4. The mother explained both at the hearing before the Tribunal (CB 125) and subsequently in writing (CB 114) of his poor mental health (see also CB 70).
  3. Before the Court the first applicant submitted, after hearing submissions from Mr Markus, that her son did not “receive” the Tribunal’s decision because he did not attend the handing down of the decision. No reference was made to the copies of the decision record sent to the second applicant at his address for service.
  4. The applicant subsequently submitted before the Court that her son “refused to see (read) the document” because his illness was more than “hers.”
  5. I treat the applicants’ statements to the Court carefully, noting that they were not put to the Court in any evidentiary context. Dealing with the submissions on their face, I note that no evidence of the son’s medical condition was put before the Court. That he refused to read the Tribunal’s decision record does not mean that he did not physically receive it, either from his mother, or by way of the postal service.
  6. A strong inference can be drawn from the matters set out at [49] above that he physically received the Tribunal’s decision and reasons. In all, I am satisfied that the second applicant physically received the Tribunal’s decision in February 2008, on or about 28 February 2008.
  7. In SZKNX, the Full court said at [25]:
  8. The application to the Court by the second applicant was made well outside the period of 28 days stipulated in s.477(1). With reference to what was said in SZKNX, having received physical possession on or about 28 February 2008, the application should have been made within 28 days, that is, by 27 March 2008. It was not.
  9. Further, the second applicant also seeks an extension of time for the making of his application pursuant to s.477(2). This application, however, was not made within the 84 day period after he received actual notification. The Court can only extend the initial 28 day period for the making of this application for a further period of 56 days. Logic dictates that as no application for an extension was made within that time no extension can be granted. For the reasons already set out above, the second applicant’s claimed illness (even if the Court were to accept the first applicant’s assertions in this respect) does not assist the second applicant.
  10. In all, therefore, the application of the second applicant is also incompetent, and his application is also dismissed.

I certify that the preceding 57Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-sevenfifty-seven (57) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Associate: C Darcy


Date: 12 May 2009

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