SZNOZ v Minister for Immigration and Citizenship [2010] FCA 269 (25 March 2010)

Last Updated: 26 March 2010

FEDERAL COURT OF AUSTRALIA

SZNOZ v Minister for Immigration and Citizenship [2010] FCA 269

Citation:		SZNOZ v Minister for Immigration and Citizenship [2010] FCA 269
Appeal from:		SZNOZ v Minister for Immigration (No 2) [2009] FMCA 929
Parties:		SZNOZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1145 of 2009
Judge:		LANDER J
Date of judgment:		25 March 2010
Catchwords:		MIGRATION – judicial review of a decision to refuse the grant of a Protection visa given some 19 years ago – time for review is within 28 days of being served with the decision – whether the appellant was served – regs 35 and 173 of the Migration Regulations 1994 (Cth) – the Refugee Review Tribunal had no jurisdiction to review out of time – s 412 of the Migration Act 1958 (Cth)
Legislation:		Evidence Act 1995 (Cth) s 163 Migration Act 1958 (Cth) s 412 Migration Regulations 1994 (Cth) regs 35, 169, 173
Cases cited:		House v R [1936] HCA 40; (1936) 55 CLR 499 cited S115/00A v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 561 cited Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 cited SZNOZ v Minister for Immigration & Anor (No 2) [2009] FMCA 929 cited
Date of hearing:	23 November 2009, 1 March 2010
Place:	Adelaide (Videolink to Sydney)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	53
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr J Mitchell
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1145 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNOZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	25 MARCH 2010
WHERE MADE:	ADELAIDE (VIDEOLINK TO SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1145 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNOZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE:	25 MARCH 2010
PLACE:	ADELAIDE (VIDEOLINK TO SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from an order of a Federal Magistrate made on 23 September 2009 dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the RRT) dated and handed down on 22 April 2009.
2. The appellant is a citizen of Bangladesh. He arrived in Australia on 24 January 1989. On 7 February 1990 he made an application to the Department of Immigration, Local Government and Ethnic Affairs (the Department) for recognition as a refugee. He had three principal claims. First, he claimed that when the Bikram River flooded during 1987 his house was washed away and he lost everything. He said he also lost his job. He was reduced to trying to obtain day labour in order to keep his family going. His brothers were unable to help him. He had to support his wife, four children and other family members. After 1987 he had a desperate hand to mouth existence for approximately two years until he entered Australia. He claimed that if he were to return to Bangladesh he would face starvation.
3. Secondly, he claimed that because of certain political decisions the forest on the upper stretches of the Bikram River have been denuded and it is likely that his home would be destroyed every 12 to 18 months.
4. Thirdly, he claimed that he was a member of the Awami League and had been involved with political activities. He said that if he were to return to Bangladesh he would suffer from police harassment and would be imprisoned.
5. On 22 October 1991 a delegate of the Minister decided to refuse the appellant’s application for refugee status on the grounds that his claims in relation to his living conditions did not have a Convention relating to the Status of Refugees nexus and that there was not a real chance of the appellant being persecuted arising out of his political activities in Bangladesh.
6. The decision was handed down on 28 October 1991. The Appeal Book contains a letter apparently written on 28 October 1991 by the delegate who made the decision, addressed to the appellant at the residential address that the appellant had provided to the Department in his application for refugee status, notifying the appellant of his decision refusing the grant of refugee status to the appellant. He was advised that he was entitled to seek a review of the decision by the Determination of Refugee Status Review Committee and that he should exercise his right of review within 28 days of receipt of the letter. He was told that his review request must be completed on an Application for Review by Refugee Status Review Committee (Form 907) and “a copy of this letter” needed to be enclosed with the request. All further correspondence should be sent to the Determination of Refugee Status Review Committee.
7. The letter includes an endorsement:

cc Adrian Joel & Co
GPO Box 4813
Sydney NSW 2001

That address was provided by the appellant as the address to which mail should be sent. The letter bears a stamp which includes the words and figures:

RECEIVED
17 DEC 1991
DORS
BRANCH

A copy of that letter is also contained within the Appeal Book.

8. A separate letter was apparently sent to the appellant at the same address and copies to Adrian Joel & Co also at the same postal address advising the appellant that the delegate had also decided to refuse to grant the appellant a Domestic Protection (Temporary) Entry Permit because the appellant had been refused refugee status. He was advised of his rights in relation to a review of that decision.
9. There is no record of the appellant seeking a review by the Determination of Refugee Status Review Committee of either decision.
10. On 31 May 1993 Hardy’s “Immigration Professionals” wrote to the Department advising that they were acting for the appellant and giving a residential address for the appellant which was different to the address which the appellant had given in his original application for refugee status.
11. On 4 June 1993 the appellant filed a further application for refugee status which was dated 31 May 1993. The address given in that application was the same as the address notified by his migration adviser. In that application he disclosed that he had previously applied for refugee status in Australia in December 1989, which application had been “Rejected”.
12. On 13 July 1993 the Department wrote to the appellant at the residential address identified in his migration adviser’s letter and his application, advising him that he had been advised on 28 October 1991 that the Minister had refused to grant him refugee status and that he had had 28 days in which to apply for a review. The Department said that his further application of 4 June 1993 was inconsistent with the policy of the Department which requires an application for a review to be made within 33 days. The Department advised him that his case would not be reconsidered.
13. On 28 July 2008 the appellant filed an application with the RRT seeking a review of the delegate’s decision of 22 October 1991 rejecting his application for refugee status.
14. On 29 September 2008 the RRT wrote to the appellant advising that their records showed that the decision to refuse the appellant refugee status had been sent to him on 28 October 1991 at his last known address or residence and that therefore he was taken to have been notified of the decision within five working days after that date. He was advised that the last day to apply for review was 2 December 1991 and that the RRT had not received his application until 28 July 2008. He was advised that on 4 June 1993 he had sought a review which was also “well outside the time prescribed for making an application for review”.
15. On 13 October 2008 the appellant’s migration agent advised the RRT that the appellant conceded that he had not brought the application within the “prescribed deadline for lodgement” but that he had compelling and compassionate reasons “and seeks to access Ministerial Discretion under s 417 of the Migration Act”. His migration agent advised the RRT that a hearing was not necessary.
16. On 21 October 2008 in a decision handed down on 22 October 2008 the RRT decided that the appellant had been notified of the decision in the manner prescribed by reg 169(1)(d)(ii) of the Migration Regulations 1994 (Cth) (the Regulations) and thus the application for review was lodged outside the time limits prescribed in s 412(1) of the Migration Act 1958 (Cth) (the Act). The RRT decided that the application was not a valid application and that it had no jurisdiction.
17. On 3 March 2009 the appellant filed a further application for review with the RRT for a review of the delegate’s decision of 22 October 1991. In that application he sought a review of a decision to refuse the grant of a Protection (Class XA) visa on the “Date of DIAC letter notifying you of the DIAC decision on your case: 22/10/91”. On 16 March 2009 the appellant wrote to the RRT asking that the arguments included in the letter be taken into account by the RRT. He contended in that letter that “the decision was not completed because the letter which was sent to the applicant by the Department was returned to the Department and the Department had full knowledge that the applicant did not receive the Department’s decision”.
18. On 22 April 2009 the RRT, differently constituted, decided that it did not have jurisdiction for the same reasons given by the previous RRT.
19. On 11 May 2009 the appellant applied to the Federal Magistrates Court for the review of the RRT’s decision of 22 April 2009. An amended application was filed on 23 July 2009.
20. The thrust of the appellant’s claims in the Federal Magistrates Court was that the RRT should not have found that the appellant was notified of the delegate’s decision in circumstances where the appellant asserted that he did not receive that decision. The appellant did not assert that he did not know of the decision, as clearly he must have at the time he signed the application of 31 May 1993, because at that stage he advised that his application for refugee status had been rejected.
21. During the hearing in the Federal Magistrates Court the appellant sought to give oral evidence to explain his delay in making his application for review. That application was refused on the ground that that evidence would not be relevant having regard to the deeming provisions of the Regulations and on the further basis that the appellant had had an opportunity to file affidavit evidence but had not.
22. The Federal Magistrate concluded that the first respondent had complied with reg 35 and that by reason of reg 173 the decision had been deemed to have been served upon the appellant on the expiry of five working days after the day of posting.
23. The Federal Magistrate dismissed the application for judicial review because the first application for a review by the RRT was made on 28 July 2008, nearly 17 years after notification of the decision and s 412(1)(b) of the Act requires an application for review of an RRT reviewable decision to be made not later than 28 days after the notification of the decision.
24. Before turning to the appellant’s grounds of appeal it is necessary to understand the legislation which impacts upon this appeal.
25. At the relevant time reg 35 provided:

(1) Where the Minister refuses to grant a visa ... the Minister must give the applicant written notice of that decision:

(a) by posting the notice to the latest address for service provided by the applicant in relation to the application; or

(b) by posting the notice to the residential address provided by the applicant in the application; or

...

(2) Where notice of decision is served on the applicant under subregulation (1), service is to be taken to be effected as if the notice was a document to which subregulation 173(1) or (2) applies.

26. At the relevant time reg 173(2) provided:

(2) where a document is served on a person in accordance with this Division by post, service is to be taken to be effected:

(a) if the service is within Australia – on the expiry of 5 working days after the day of posting; or

(b) if the service is outside Australia – on the expiry of 21 days after the day of posting.

27. Regulation 169(1)(d)(ii) referred to by the RRT in its decision of 21 October 2008 is not relevant.
28. Section 411(1)(a) of the Act provides that a decision made before 1 September 1994 that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol is a RRT-reviewable decision.
29. Section 412(1)(b) of the Act provides that an application for review of an RRT-reviewable decision must be given to the RRT within the period prescribed, being a period ending not later than 28 days after the notification of the decision.
30. The appellant has raised four grounds of appeal:

1. The Federal Magistrates Court erred in not considering the applicant’s request to allow him leave to give evidence in support of his application before the Federal Magistrates Court. The mentioned (sic) that ‘The Court rejected the Applicant’s application to give oral evidence in extempore reasons given at the hearing’ (paragraph-26). It is very clear from reading the paragraph 11 of the judgment why applicant wanted to give oral evidence.

2. The Honorable (sic) Federal Magistrate erred in not considering that the Tribunal made a jurisdictional error when the Tribunal took into account a wrong concept of Law. The Tribunal knew that the letter was returned to the Department and there was no proof that the agent was authorized agent for the purpose of the notification of the Department’s decision. “Returned to Sender” does not support the Tribunal (sic) findings and reasons to reject the applicant’s review application. Regulation 35 and regulation 173 (paragraph 28 & 29 of the judgment) do not apply when document was returned undelivered.

3. The Honorable (sic) Federal Magistrate erred in not considering that the Tribunal made a jurisdictional error when the Tribunal did not put sufficient attention to review the applicant (sic) application that the Tribunal referred to the incorrect regulation in the making of its decision and such an error was a jurisdictional error. The regulations referred in the decision do not apply for the applicant’s case.

4. The Honorable (sic) Federal Magistrate wrongly considered the submission of the First Respondent because the Respondent failed to prove that when the letter was returned undelivered then how it would be deemed to be delivered to the applicant. The applicant also did not get enough time and opportunity on 16 September 2009.

Ground 1

31. The question for the RRT was whether the RRT had jurisdiction to review the decision of the delegate when the application was made to the RRT nearly 17 years after the delegate’s decision. That question had to be answered by reference to the provisions of s 412 of the Act, which requires the application for review to be made within a period ending not later than 28 days after notification of the decision. The question therefore for the RRT was whether or not the application was within time, which had to be answered by reference to when the appellant was notified of the decision.
32. Any oral evidence that he might have given in relation to any reasons explaining the delay in making the application would not be relevant to that issue. That issue had to be determined by reference to the Act and Regulations, and in the light of the knowledge that the notification of the decision had been returned to the Department on 17 December 1991.
33. The Federal Magistrate gave ex tempore reasons for her decision to refuse the appellant’s application to give oral evidence which are included in her reasons for judgment dismissing the appellant’s application: SZNOZ v Minister for Immigration & Anor (No 2) [2009] FMCA 929. She found that any explanation that he wished to give for his delay would not overcome the legislative hurdles. She was right to refuse to allow the appellant to give evidence.

Ground 2

34. Ground 2 raises the issue which was for determination by the Federal Magistrate.
35. Regulation 35 obliges the Minister to give an applicant for a visa written notice of the decision either by posting the notice to the latest address for service or by posting the notice to the residential address provided by the applicant in the application. It is clear that was done. Indeed the evidence is that the notice was sent to both addresses. The notice was posted to the residential address provided by the applicant in the application. Moreover, the notice was sent to Adrian Joel & Co at the address for service provided by the applicant. Where the Minister proceeds under reg 35(1) as the Minister is obliged, service is to be taken to be effected as if the notice was a document to which reg 173(1) or (2) applies: reg 35(2). Where a document is served in accordance with reg 173, service is taken to be effected if the service is within Australia on the expiry of five working days after the day of posting.
36. There is no direct evidence that the notices were posted. That is not surprising as some 17 years had passed since the decision was made.
37. However, the notice must have been posted before 17 December 1991, which was the date upon which a copy of the notice was returned to the Department. Therefore it can be said that, at the very latest, the notice was deemed to have been received by the appellant five days after 17 December 1991.
38. The appellant had notice of the decision at some time prior to 4 June 1993 because in his application filed on that day he advised the first respondent that his previous application had been rejected.
39. Section 163 of the Evidence Act 1995 (Cth) (the Evidence Act) provides:

(1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

(2) In this section:

business day means a day that is not:

(a) a Saturday or a Sunday; or

(b) a public holiday or bank holiday in the place in which the letter was prepared;

Commonwealth agency [Repealed]

letter means any form of written communication that is directed to a particular person or address, and includes:

(a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and

(b) any envelope, packet, parcel, container or wrapper containing such a communication; and

(c) any unenclosed written communication that is directed to a particular person or address.

40. The respondent relied upon that provision for its effect for the presumption that the letter was sent to the appellant’s residential address and to the address for service five days after the date of the letter. Although at the time the letter was sent the Evidence Act had not been enacted and it would appear to apply to a letter sent at any time.
41. Either the appellant or the appellant’s migration adviser did not receive the notice of the decision, but the non-receipt of the notice does not mean, for the purpose of the Act, that he did not receive it. One cannot tell by looking at the file who did not receive the notice. However, as only one of the two notices was returned, it would follow that the other notice was received by the appellant at his residential address or by the appellant’s agent at his address for service. The Act and Regulations are clear. Regulation 173(2) provides that service is taken to be effected five days after the notice was posted and his rights of review run in accordance with s 412 of the Act.
42. If in fact an applicant was entitled to say that notwithstanding the Regulations and the Act he had not actually received the notice, then the Department and the RRT would be in the difficult position of never knowing whether the notice had actually been received by the applicant.
43. Even if the appellant did not receive the document that would not mean that the RRT erred in failing to exercise its jurisdiction. The statutory scheme in regs 35 and 173 does not oblige the RRT to be satisfied that the appellant actually received the document. Regulation 173(2) provides that the service is taken to have been effected. It cannot be said that the regulation has an implied proviso to the effect that the regulation only operates unless the document is returned.
44. The purpose of the Regulations is to ensure that the Department can treat the notice as having been given at a particular time.

Ground 3

45. The RRT in its reasons said that the applicant was notified of the decision in the prescribed way for the purpose of reg 169(1)(d)(ii). Regulation 169 is not relevant. The relevant regulation is reg 35. The reference to the wrong regulation however does not mean that the result would have been any different. The fact is that only one residential address had been provided to the first respondent by the appellant and therefore there was only one residential address to which the notice could be sent and the first respondent complied by sending the notice to that address. As I have said, the notice was also sent to the address for service given in the application. Although one notice has been returned to the Department, the other must be taken to have been received within five days of posting.
46. There was no point in the Federal Magistrate giving any relief for the reason that the RRT had referred to the wrong regulation because the relief would have been futile. If the Federal Magistrate had quashed the RRT’s decision and remitted the matter to the RRT for further consideration she would have done so with the knowledge that the RRT did not have jurisdiction because of the combination of regs 35 and 173. If the application had been remitted to the RRT, the outcome had to be the same: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145; S115/00A v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 561 at 567.
47. It has not been shown that the exercise of the Federal Magistrate’s discretion when the relief is discretionary has miscarried: House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505.

Ground 4

48. This ground has effectively been addressed in the previous grounds. The RRT could not make a finding that the appellant had not received the notice which enclosed the decision handed down by the first respondent’s delegate on 28 October 1991 in the light of regs 35 and 173. Service was taken to have been effected by operation of law pursuant to reg 173(1).
49. There is nothing before this Court that would support the complaint in the second sentence of ground 4.
50. The appellant’s submissions on appeal were not directly relevant to the issues under consideration but bear repeating in case the first respondent is moved to substitute a more favourable decision than the RRT had power to make.
51. The appellant was born on 3 June 1953 and has spent the last 21 years and 2 months in Australia. He says he is loyal to the country and “loyal to the soil of this country”. He now suffers from a lot of sickness. In the last 21 years he has lost all of the relatives, friends, property and assets that he had in Bangladesh. If he were to be returned to Bangladesh he would have nothing left there; nowhere to live; nowhere to eat; and no-one that he knows and with whom he could associate. He would not be able to obtain care or medication. He begged to remain in Australia.
52. As I have said, unfortunately, the submissions which the appellant has made, whilst clearly relevant to him, are not relevant on the appeal.
53. The appeal must be dismissed. The appellant must pay the first respondent’s costs.
    

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 25 March 2010