[2010] FMCA 989 [2010] FMCA 1030 (22 December 2010)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPH v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 989

MIGRATION – Review of RRT decision – applicant a citizen of Lebanon – where letter informing applicant of Department’s decision to refuse to grant visa was returned unopened and application for review of delegate’s decision filed out of time – where applicant was deemed to have received letter and sought legal advice on operation of new s.494C – where Tribunal agreed to reconsider whether it had jurisdiction – where s.494C not relevant on the facts and not introduced until after applicant was deemed to have received decision letter.

Migration Act 1958 (Cth), ss.494B, 494C, 48B

Applicant:

SZOPH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1924 of 2010

Judgment of:

Raphael FM

Hearing date:

6 December 2010

Date of Last Submission:

6 December 2010

Delivered at:

Sydney

Delivered on:

6 December 2010

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

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

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1924 of 2010

SZOPH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a most unusual case.
2. The applicant is a citizen of Lebanon who appears to have arrived in Australia on 19 March 2008 and who applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 2 May 2008. On 25 July 2008 an officer of the Department and delegate of the Minister refused to grant the protection visa. During the course of the hearing today, the applicant complained that he did not receive an interview with the Department, but there is no obligation on the Department, at law, to provide an applicant with an interview.
3. On 13 August 2008 the Department sent, by registered post, a letter to the applicant advising him of refusal of the application. It is conceded that the notification was, in all probability, not received by the applicant as it was returned to the Department. However, the applicant appears to have discovered that his application was refused because, on 17 September 2008, he applied to the Refugee Review Tribunal for a review of the delegate’s decision.
4. The Tribunal noted that:
   • “A decision to refuse to grant a protection (Class XA) visa under section 65 of the Act is covered by section 411(1)(c). Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The prescribed periods are set out in regulation 4.31 of the Migration Regulations (1994) and commence on the day on which the applicant is notified of the decision.
   • In respect of an applicant who has applied for review of an RRT reviewable decision covered by section 411(1)(c) and is not in immigration detention when notified of the delegate’s decision, the application for review must be lodged at a registry of the Tribunal within a period not later than 28 days after the day on which the notice is received: s.412(1)(b) and r.4.31(2)(b). Thus, notification of the decision provides the reference point for the commencement of the limitation period provided for in section 412(1)(b) and r.4.31(2)(b). There is no provision for extension of time... The provisions relevant to this matter that deal with notification of a decision to refuse to grant a visa are contained in section 66, 494B, 494C and 494D of the Act and regulation 2.16 of the regulations.
   • Section 66(1) provides that when a Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Regulation 2.16 provides that for the purpose of section 66(1), the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B...

One of the methods specified in s.494B consists of the Minister dispatching the document within three working days of the date of the document by pre-paid post or other pre-paid means to the last address for service or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents; s.494B(4). If a document is given to a person by this method, and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the document seven working days (in the place of the address) after the date of the document; s.494C(4)(a). This will be so even if the document was never, in fact, received. Therefore, if the notice of a decision to refuse to grant a visa was sent in accordance with s.494B from a place in Australia to an address in Australia, the prescribed period within which a review application must be lodged with the Tribunal commences seven working days after the date of the notice.” [7] [CB 134] – [11] [CB 135]

5. The Tribunal found that the provisions of ss.494B and 494C had been complied with, in this instance; that the letter was sent by pre-paid post on 28 July 2008 from an address in Australia to a place in Australia; that it was dispatched within three working days of the date of the letter to the correct address; and, therefore, was deemed to have been received by the applicant on 5 August 2008, being seven working days after the date of the notice, even though the notice had been returned unclaimed. The Tribunal noted that it had no discretion to widen the period of 28 days and that the period of 28 days had ended on 2 September 2008, that the application was not received until 17 September 2008. The Tribunal concluded that it had no jurisdiction to review the delegate’s decision.
6. In normal circumstances, that would either be the end of the matter or an applicant would make an application for review to this Court alleging that the Tribunal had made an error of law in the manner in which it came to that conclusion. The applicant did not do that. On 19 December 2008, the applicant went to the Department of Immigration and sought a copy of the delegate’s refusal letter, which he apparently had not had before [CB 89]. On 19 December 2008 he was given a copy of that document.
7. What the applicant did between 19 December 2008 and 21 February 2010 is not known. On 21 February 2010 the applicant sought advice from a registered migration agent who made an application under the Freedom of Information Act for the applicant’s file. This was provided. Following its receipt, the migration agent, on behalf of the applicant, made a further application for review of the delegate’s decision. Accompanying that review was an advice from Mr King of counsel [CB122-123].
8. It may be because of the strength of this advice and its referral to the new s.494C of the Migration Act 1958 (Cth) (the “Act”), which had been inserted into that Act and commenced operation on 5 December 2008, that the Tribunal decided to entertain the review, or at least to determine whether or not it had the jurisdiction to entertain the review. I am of the view that, in all the circumstances of this case, the Tribunal was functus and the applicant had no right to request a further review. I understand from Ms Baggett, who appears for the Minister, that she agrees with this but it was not the basis upon which her submissions were made.
9. In any event, the Tribunal, having formed the preliminary view that it did not have jurisdiction, wrote to the applicant on 16 July 2010 inviting submissions. Written submissions were received by it on 26 July, including a copy of the advice of counsel, to which I have referred.
10. Section 494C is in the following form:
    • “Document not given effectively
    • (7) If:
      • (a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
      • (b) the person nonetheless receives the document or a copy of it;
    • then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.”
11. In his submission to the Department dated 16 April 2010, the applicant’s migration agent asserted that:
    • “Where an individual is able to show that they received a document at a later date, then the later date will be taken as the date of receipt.”

This quotation is alleged to come from the Second Reading Speech of Senator Fierravanti-Wells on 14 October 2008. But either the Minister made a rather greater claim for the subsection than is revealed by the words of the subsection itself and the explanatory memorandum, or the migration agent has omitted some part of the Minister’s remarks.

12. The explanatory memorandum makes it quite clear that:
    • “This new subsection provides that if the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A, for example, where the method in section 494B has been chosen as opposed to required by the Act or the regulations) but makes an error in doing so, and the person nonetheless receives the document or a copy of it, then the person is taken to have received the document at the times mentioned in section 494C as if the Minister had given the document to the person without making an error in doing so. Unless the person can show that he or she received it at a later time, in which case the person is taken to have received it at that time. This new subsection will also protect the person from possible injustice by allowing the person to actually show that he or she received the document at a later time than provided by the deeming provisions.”
13. It seems to me clear, from the wording of the section itself and the explanatory memorandum, that this subsection is aimed solely at mediating the effect of a mistake made by the Department, as opposed to a mistake made by an applicant. I assume that if the Department failed to send a notification out within three days, as required by the Act, but sent it out in, say, five days, and the applicant received it within seven days after the five days (or even if he received it later), then he could seek the protection of the subsection so that the deeming provisions would not apply to him until he actually received the document. But the trigger for this subsection is the Minister’s error and, in the instant case, no error was made by the Minister. The subsection is therefore not in point and, in any event, was not brought into the Act until some months after the applicant was deemed to have received his own decision letter. There is no suggestion in the Act that the subsection is retrospective and, in my view, it would not apply to this particular application.
14. In the second Tribunal decision, which is the matter before this Court, the Tribunal came to the same conclusion as the first, namely, that the provisions of the Act relating to deemed service had been complied with, that the applicant was late in making his application and that the Tribunal therefore had no jurisdiction to entertain his application. In my view, there was no jurisdictional error in the decision that the Tribunal made. It appears to me to be correct in law, save for the fact that it probably should not have been made at all, as the Tribunal had no jurisdiction to make it. The applicant’s application to this Court must therefore be dismissed.
15. The applicant has been in this country for some time. He claims to have taken the benefit of certain educational opportunities. He claims to be a devout member of his church and, most importantly, he claims that his grounds for claiming to be a person to whom Australia owes protection obligations have never been investigated. It may well be that the Minister, when considering the matter, is able to come to a conclusion that he should grant the applicant the right to make a further application in accordance with the provisions of s.48B of the Act.
16. The application is dismissed. The applicant shall pay the first respondent’s costs assessed in the sum of $4,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 17 December 2010