SZOBI v Minister for Immigration & Anor [2010] FMCA 259 (13 April 2010)

Last Updated: 29 April 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBI v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 259

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – relevant statutory provisions provide that despatch of notification in accordance with prescribed method will lead to deemed receipt even if notification never delivered or received – “return to sender” note on envelope enclosing notification of visa refusal did not affect deemed receipt of that notification – applicant has no right of review before the Tribunal if review application is lodged outside prescribed time period.

Migration Act 1958, ss.66, 412, 414, 474, 494B, 494C Migration Regulations 1994, regs.2.16, 4.31

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Swee Yen Tay v Minister for Immigration & Citizenship [2010] FCAFC 23

Applicant:

SZOBI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3040 of 2009

Judgment of:

Cameron FM

Hearing date:

13 April 2010

Date of Last Submission:

13 April 2010

Delivered at:

Sydney

Delivered on:

13 April 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3040 of 2009

SZOBI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant arrived in Australia most recently on 10 May 2009. On
   2 June 2009 she lodged an application for a protection visa on the basis that she feared persecution in China as a Falun Gong practitioner. Her application was refused by a delegate of the first respondent (“Minister”) on 14 August 2009. On 30 October 2009 the applicant applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision, however, the Tribunal found that it did not have jurisdiction as her application to it had been lodged out of time. The applicant has now applied to this Court for judicial review of the Tribunal’s decision.
2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
3. For the reasons which follow the application will be dismissed.

Background facts

4. As already observed, the applicant lodged an application for a protection visa on 2 June 2009. On 14 August 2009 the delegate refused the applicant’s application as she was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The applicant was notified of the delegate’s decision by letter of the same date which was sent by registered post to the residential and postal address indicated on her visa application form. That letter was returned to the Minister’s department unclaimed.
5. On 30 October 2009 the applicant applied to the Tribunal for a review of the delegate’s decision. In submissions received by the Tribunal on
   12 November 2009 the applicant claimed that she had not received the department’s letter of 14 August 2009. She alleged that it was only after she rang the department on 27 October 2009 to inquire about the status of her application that she learnt that it had been refused. She claimed that she attended the offices of the department on
   30 October 2009 at which point she was given a copy of the delegate’s decision.
6. The Tribunal found that the decision notice dated 14 August 2009 had been sent by prepaid post on 14 August 2009 from a place in Australia to the applicant’s address in Australia, being the last residential address which she had provided to the department for the purposes of receiving documents. The Tribunal found that the applicant had been properly notified of the delegate’s decision pursuant to the Act. It further found that the applicant’s application for a review had been received outside the prescribed time limit set out in the Act and the Migration Regulation 1994 (“Regulations”).
7. In light of these facts the Tribunal concluded that the applicant’s application on 30 October 2009 was not a valid application under the Act. As a consequence, it found that it did not have jurisdiction to review the matter.

Proceedings in this Court

8. The amended application alleged the following:
   • (1) The Tribunal erred in concluding that it was not bound to review the RRT-reviewable decision the subject of the Applicant’s review application because it was lodged on
     30 October 2009.
9. That allegation was supported by several particulars which were to the effect that the department’s notification had failed to comply with ss.66(1) and 494B(4) of the Act and also that the communication which was sent to her, when compared with s.494C(4) of the Act, had deprived her of a meaningful right of review.
10. In order for an application for review to the Tribunal to have been made in time, the Act and the Regulations work together to set out what is required. Their combined effect is that an application for review must be lodged with the Tribunal within twenty-eight days after the applicant is taken to have been notified of the delegate’s decision on the application for a protection visa.
11. In reviewing the Tribunal’s decision in this case, it is important to understand the relevant statutory provisions. Section 66(1) of the Act provides:
    • When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

That way is prescribed in reg.2.16 and, in particular, sub-rule (3), which provides:

The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.

12. Section 494B(4) provides that the Minister may dispatch documents by prepaid post or other prepaid means. The subsection provides as follows:

(4) Another method consists of 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.

13. Section 494C(4) provides for when such documents are deemed to have been received, saying:

(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the documents by prepaid post or 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...

14. Section 412(1)(b) provides that an application for review of an
    RRT-reviewable decision must be given to the Tribunal within the period prescribed, being a period ending not later than twenty-eight days after the notification of that decision. Regulation 4.31 provides for a period of twenty-eight days commencing on the day the applicant is notified of the decision.
15. In this case, the Tribunal found as a matter of fact that the decision notice was sent by prepaid post to the applicant on
    14 August 2009 because the department’s filed records indicate that it was sent on that day. The way the formula under the Act works is that the document is taken to have been received by the applicant seven working days after the date which the document in question bears. In the circumstances of this matter, that date is 25 August 2009.
16. As already noted, by virtue of s.412 and reg.4.31, an applicant has twenty-eight days after deemed notification of the delegate’s decision within which to lodge his or her review application with the Tribunal. In this case, that twenty-eight day period expired on
    22 September 2009. As the Tribunal records at page 1 of its decision, the applicant’s application was not lodged until 30 October 2009, with the result that it was lodged late.
17. In her amended application, the applicant alleges that time did not begin to run under s.412 because she had not been properly notified of the delegate’s decision pursuant to s.66(1). Importantly, the applicant does not challenge the Tribunal’s finding that, on the date which the letter to her bears, it was sent to her by pre-paid post at the address that she had supplied to the department. Based on the evidence in the court book which is Exhibit A, I conclude that this finding of the Tribunal was correct.
18. In support of her allegation of jurisdictional error, the applicant refers to the fact that the envelope enclosing the delegate’s decision bore a notation that if the article was not delivered within seven days it should be returned to the department’s box at the General Post Office. She alleges that this instruction offended the requirement contained in s.66(1) that the decision be notified in the prescribed way in that the prescribed way, relevantly s.494B(4), does not authorise a “return to sender” note to be included on the envelope enclosing the decision which the department purports to be notifying.
19. Contrary to the applicant’s allegation, s.494B(4) has nothing to say about the return of the notification should delivery, and thus actual notice, fail or be ineffective in some way. Section 494B(4) is a facultative provision which simply provides one method by which communications may be sent to applicants. It is not exhaustive, nor is it prescriptive except to the extent of its terms, namely, that the communication be sent within three days of the date of the document by pre-paid post or other pre-paid means to one of two prescribed categories of address.
20. Section 494B(4) is not a provision which deals with delivery or receipt. It deals simply with dispatch and how documents may be sent. It is s.494C(4) which deals with the consequences of a communication having been sent in accordance with s.494B(4). And it is s.494C(4) which is the test of the applicant’s allegation that the envelope should not have borne the “return to sender” note. It is that subsection which provides that a communication dispatched in accordance with s.494B(4) will be deemed to have been received. It is unconcerned with whether the communication arrives at all, let alone arrives and is returned as appears to have been the case here.
21. The effect of s.494C(4) is that a communication sent in accordance with s.494B(4) will be deemed to have been received even if it was lost in transit and never arrived at all. It is the manner of dispatch which matters under these provisions, not the receipt: Swee Yen Tay v Minister for Immigration & Citizenship [2010] FCAFC 23.
22. As to the applicant’s alternative allegation that the “return to sender” instruction prevented her from having a meaningful right to review, it should be observed that an applicant has no right of review before the Tribunal unless a valid application is lodged. That is the effect of s.414 of the Act. In this case, the Tribunal was right to conclude that the applicant’s failure to lodge her review application within the prescribed period meant that it had no jurisdiction and, in effect, that she had lost her right to have the delegate’s decision reviewed.
23. For these reasons, the Tribunal was not in error in deciding that the application for review had been received outside the mandatory time limit and was not a valid application. The matters raised by the applicant have failed to show jurisdictional error on the part of the Tribunal.

Conclusion

24. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 28 April 2010