SZMYQ v Minister for Immigration & Anor [2009] FMCA 55 (3 February 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYQ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 55

MIGRATION – Protection visa application – whether valid application – whether application for review received within prescribed time – whether Tribunal had jurisdiction.

Migration Act 1958 (Cth), ss.66(1), 412(1)(b), 414(1), 494B(4), 494C(4) Migration Regulations 1994 (Cth), reg.2.16

Lee v Minister for Immigration and Multicultural Affairs [2002] FCAFC 305 NACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 173 Santos v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 334 SPCB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 26 SZEDN v Minister for Immigration [2005] FMCA 106 SZJOH v Minister for Immigration and Citizenship & Anor [2006] FMCA 1890 SZKKS v Minister for Immigration and Citizenship & Anor [2008] FMCA 47 SZECC v Minister for Immigration [2004] FMCA 1031

Applicant:

SZMYQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3071 of 2008

Judgment of:

Lucev FM

Hearing date:

3 February 2009

Date of Last Submission:

3 February 2009

Delivered at:

Perth

Delivered on:

3 February 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr A. Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

SYG 3071 of 2008

SZMYQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal[1] made on 22 October 2008.
2. The application came on for a first court date in Sydney on 8 December 2008 at which time it was transferred to the Court’s Perth Registry and listed for final hearing at 2.15pm on 3 February 2009.

Grounds of application

3. The grounds of the application are as follows:
   • The decision made by the RRT was affected by judicial error in that it failed to consider whether or not I did actually receive the decision from the Department of Immigration. I have only received one letter after I lodged my application for a protection visa. There is no evidence that the Department did send a letter to my address. Because I did not receive the decision, I was unable to lodge my RRT review within time limit.
4. That ground of application relates to the RRT’s decision of 22 October 2008 in which it found that the applicant’s application for review was received by the RRT outside the mandatory 28 day time limit, was therefore not a valid application, and therefore not an application that the RRT had jurisdiction to determine.[2]

Issues

5. The issue in this matter is whether the RRT had jurisdiction to consider the applicant’s application for review. Factually, that issue depends upon whether there was evidence concerning the dispatch of a letter containing the delegate’s decision to the applicant within three days of the date of the delegate’s decision.

RRT’s findings and reasons

6. The relevant paragraphs of the RRT’s findings and reasons are as follows:
   • 16. The Tribunal finds that the applicant is seeking review of an RRT-reviewable decision covered by s.411(1)(c) and that the applicable prescribed period is 28 days, commencing on the day on which the applicant was notified of the decision: s.412(1)(b) and r.4.31(2)(b).
   • 17. The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
   • 18. As the decision notice was sent by prepaid registered post, the Tribunal made enquiries with the Department to determine whether the letter was sent within 3 working days. Converga, which provide mail and distribution services for the Department, confirmed that the decision notification was dispatched by prepaid registered post on 10 June (RP40237838).
   • 19. The material before the Tribunal indicates that the applicant did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 7 June 2008, was sent by prepaid post on 10 June 2008 from a place in Australia to the applicant at an address in Australia, being the last residential address provided to the Minister by the applicant for the purposes of receiving documents. The letter was returned to the Department unclaimed. The returned envelope is held on the Departmental file and indicates that the envelope was addressed correctly.
   • 20. The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4). Therefore the applicant is taken to have received the notice on 19 June 2008, being 7 working days after the date of the notice. This is so even though the notice was returned unclaimed.
   • 21. The applicant’s submissions, dated 7 October 2008 stated:
     • I am writing this letter to you which I would like to regard about my protection application. I have been applied an Australian Protection Visa in May of 2008, but since that day I just received one letter from DIAC which was about Immigration has been received my application, but until now I never receive any letter from DIAC. During I came to Australia and I never change my personal address which location in Auburn. Please RRT think my case seriously.
   • 22. The Tribunal does not accept that these submissions provide any basis for accepting the review application lodged on 17 September 2008. The Tribunal has no discretion to accept an application for review.
   • 23. The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 19 June 2008. Therefore, the prescribed period of 28 days within which the application for review could be lodged ended on 17 July 2008.
   • 24. The application for review was not received by the Tribunal until 17 September 2008, after the prescribed period had expired.
   • 25. As the application for review was received by the Tribunal outside the mandatory time limit, it is not a valid application and the Tribunal has no jurisdiction in this matter.[3]
7. Accordingly, the RRT made a decision that it did not have jurisdiction in the matter.[4]

Relevant legislation and legal principles

8. The RRT is required to review decisions of the delegate where a valid application is made under s.412 of the Migration Act 1958 (Cth)[5] for review of an RRT-reviewable decision.[6] Such an application must be made to the RRT within 28 days after notification of the delegate’s decision.[7] There is no provision in the Migration Act allowing for an extension or variation of the 28 day time period,[8] and an application to the RRT made beyond the 28 day period cannot be considered by the RRT because it has no jurisdiction to do so.[9]
9. Section 66(1) of the Migration Act requires the Minister to notify applicants of the delegate’s decision in the prescribed manner. The manner prescribed for the purposes of s.66(1) of the Migration Act is one of the methods specified in s.494B of the Migration Act.[10]
10. Section 494B(4) of the Migration Act prescribes one permitted method of notifying an applicant of the delegate’s decision as being the following:
    • ...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.[11]
11. Section 494C(4) of the Migration Act provides as follows:
    • 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.[12]
12. It is for the Minister to prove that the delegate’s decision was sent to the applicant within three days after the date of the delegate’s decision.[13] But having done so, the delegate’s decision is deemed to have been received, and that fact is not then subject to contrary proof. Section 494C of the Migration Act is conclusive as to the notification date.[14]

Dispatch of the delegate’s decision

13. The delegate’s decision, which was to refuse the applicant a protection visa,[15] was:
    1. dated 7 June 2008;[16] and
    2. sent to the applicant addressed to 5055/57-79 Queen Street, Auburn, NSW 2144.[17]
14. The RRT relied upon evidence that the Department’s mail and distribution services provider had confirmed that the decision notification was dispatched by prepaid registered post on 10 June 2008, with confirmation of a dispatch number of RP40237838.[18] The letter attaching the delegate’s decision includes the typed annotation “SENT BY REGISTERED POST” and has a copy of a tab marked “SENDER TO KEEP RP40237838” on the letter next to the applicant’s address.[19] There is also evidence that a letter was returned unclaimed to the Department for registered post item RP40237838.[20] The copy of the envelope for that returned unclaimed item contains a post mark bearing a sent date of 10 June 2008.[21] Although the name and address are substantially obscured by Australia Post’s return to sender sticker the name commences with the applicant’s form of address and the first initial of her name, with the remainder of the name being obscured. The address commences with the number 5055 and ends with the abbreviation “St” with the remainder of the street address being obscured. The letters “Aub” are visible in relation to the suburb name, and the post code 2144 is visible.[22]
15. In all the circumstances, it was open to the RRT to find that the envelope returned to the Department was the delegate’s decision sent by registered post on 10 June 2008. It was also open to the RRT to find that that letter was sent to 5055/57-79 Queen Street, Auburn, NSW 2144. That address was the nominated residential and postal address for the applicant.[23] The applicant undertook to inform the Department if the applicant intended to change that address for more than 14 days while the application was being considered.[24] It was an address to which the Department had sent correspondence concerning the receipt of the applicant’s protection visa application, which correspondence also advised the applicant that the Department must be told if the applicant changed address for more than 14 days, and further advised that if that information was not provided upon change of address that the applicant will be taken to have received letters and notifications about the application at the last address given to the Department.[25] There is no evidence of any change of address advice from the applicant at any relevant time.
16. On 22 September 2008 the RRT wrote to the applicant and advised that the application appeared to have been received late, and that the Tribunal had no power to consider a late application. It asked the applicant to write to the Tribunal if the applicant disagreed.[26]
17. The applicant wrote back advising that she had never changed her personal address.[27]
18. In the circumstances, there was adequate evidence for the RRT to arrive at the factual conclusions that it arrived at with respect to the:
    1. delegate’s decision being dispatched to the applicant on 10 June 2008; and
    2. the applicant’s last known postal address being 5055/57-79 Queen Street, Auburn, NSW 2144; and
    100. that the delegate’s decision was dispatched on 10 June 2008 to the applicant’s last known postal address.
19. The applicant did not challenge any of the evidence related to the dispatch of the delegate’s decision by the RRT.
20. Consequently, the applicant is taken to have received the delegate’s decision 7 working days after the date of the delegate’s decision, that is on 19 June 2008.[28]

Time for lodgement of application for review

21. Receipt of the delegate’s decision by the applicant being taken to be 19 June 2008 means that the applicant had 28 days commencing on 19 June 2008 to lodge an application for review with the RRT.[29] Thus, the applicant had until 17 July 2008 to lodge that application. The applicant did not lodge the application until 17 September 2008, and was therefore out of time by some two months.
22. The RRT’s conclusion that it had no jurisdiction to consider the applicant’s application for review was therefore correct.

Conclusion and orders

23. It follows from the conclusion that the RRT was correct in finding that it had no jurisdiction to consider the applicant’s application for review, that the application must be dismissed.
24. The Court will hear the parties as to costs.

I certify that the preceding 24Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-fourtwenty-four (24) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: Sandra Gough

Date: 3 February 2009

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[1] “RRT”.
[2] Court Book (“CB”) 64 (para.25).
[3] CB 63-64 (paras.16-25).
[4] CB 64 (para.26).
[5] “Migration Act”.
[6] Migration Act, s.414(1).
[7] Migration Act, s.412(1)(b).
[8] NACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 173 at para.7 per Stone J (“NACG”); SZECC v Minister for Immigration [2004] FMCA 1031 at para.16 per Scarlett FM (“SZECC”).
[9] NACG at paras.7-8 per Stone J (at para.8: “The inexorable and inevitable result is that the Tribunal had no jurisdiction...”); SZECC at para.16 per Scarlett FM; SZJOH v Minister for Immigration and Citizenship & Anor [2006] FMCA 1890 at para.10 per Scarlett FM; SZKKS v Minister for Immigration and Citizenship & Anor [2008] FMCA 47 at paras.20-21 per Howard FM; SZEDN v Minister for Immigration [2005] FMCA 106 at para.15 per Lloyd-Jones FM.
[10] Migration Regulations 1994 (Cth), reg.2.16.
[11] Migration Act, s.494B(4).
[12] Migration Act, s.494C(4).
[13] Santos v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 334 at 336 per Tamberlin J (“Santos”); Lee v Minister for Immigration and Multicultural Affairs [2002] FCAFC 305 at para.12 per Madgwick J.
[14] Santos at 337 per Tamberlin J.
[15] CB 35-42.
[16] CB 36 and 42.
[17] CB 35.
[18] CB 63. The email confirmation from the mail and distribution services provider, confirming that the letter was sent on 10 June 2008, is at CB 52.
[19] CB 35.
[20] CB 43.
[21] CB 43 – “SWLF 10Jun08 ML 519”.
[22] CB 43.
[23] CB 2.
[24] CB 14.
[25] CB 32-33.
[26] CB 55.
[27] CB 57.
[28] Migration Act, s.494C(4)(a).
[29] Migration Act, s.412(1)(b).