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[2007] FCA 1162
Federal Court of Australia
2007-08-06
Gordon J, Judgegordon J
Original judgment source is linked above.
introduction 1 This is an appeal against an order of a Federal Magistrate dated 24 May 2007 dismissing an application for judicial review of a decision of a delegate of the respondent ("the delegate") to refuse to grant the appellant a protection visa. 2 The appellant is a citizen of the Peoples Republic of China ("the PRC"). He first entered Australia on 17 August 1996. On 28 February 1997, the appellant lodged an application for a protection visa claiming to have a well-founded fear of persecution following his alleged support and involvement with the Chinese Democracy Party. 3 In refusing the appellant's visa application on 19 August 1997, the delegate did not accept on the available evidence that the appellant was of any significant interest to the PRC authorities and did not face persecution upon return to his country ("the Decision"). In drawing this conclusion, the delegate noted the relative ease with which the appellant had exited and re-entered the PRC on at least two previous occasions prior to him entering Australia. 4 Notification of the Decision was sent by post to the appellant's home address. It was returned unclaimed several days later. The appellant had, in fact, nominated his post office box as the appropriate contact point for all correspondence. As a result, the appellant was not notified of the Decision. 5 On 23 August 2005, the appellant informed the respondent of his new address for correspondence. On 14 September 2005, the respondent sent a letter to the appellant's new address notifying him of the Decision. 6 An application to show cause why remedy should not be granted pursuant to s 476 of the Migration Act 1958 (Cth) ("the Migration Act") was lodged in the Federal Magistrates' Court on 22 September 2006. The respondent filed a notice of objection to competency alleging that the appellant had not identified a decision which was reviewable under s 476 of the Migration Act. The Federal Magistrate dismissed the appellant's application with costs on 24 May 2007.
grounds of appeal 7 The appellant alleges the Federal Magistrate erred: (1) in finding that there was no decision giving rise to the possibility of an application to show cause; (2) in finding that notification of the Decision was given on 14 September 2005; (3) in finding that the delay of over one year between notification of the Decision and the application to show cause was such that the relief should be refused on discretionary grounds; and (4) in determining that it was inappropriate for the Federal Magistrates' Court to determine that time had not expired for an application to the Refugee Review Tribunal ("the Tribunal") until the Tribunal had an opportunity itself to consider its own jurisdiction. 8 For the reasons that follow, the appeal should be dismissed.
ground 1 - no decision giving rise to the possibility of an application to show cause 9 There are, in my view, a number of answers to the appellant's complaint. First, the Decision was and remains a valid decision. Secondly, notification of the Decision in September 2005 did not constitute a separate decision and complied with ss 494B and 494C of the Migration Act. Thirdly, the Federal Magistrates' Court did not have jurisdiction in relation to the Decision. The first matter requires identification of the provisions of the Migration Act in force on 19 August 1997 when the Decision was made. The third matter requires consideration of s 476 of the Migration Act in force on 22 September 2006.
Decision was and remains a valid decision 10 The Decision was made on 19 August 1997. At that time, the relevant provisions of the Migration Act were contained in Reprint no. 7 consolidated to 23 April 1997. There were two amendments to that Act in the period between the reprint and the Decision: Migration Legislation Amendment Act (No. 3) 1997, No. 92 of 1997 and Environment, Sport and Territories Legislation Amendment Act 1997, No. 118 of 1997 cl 48 of Schedule 1. Neither of the amendments is relevant. At that time, the Migration Act provided that when the Minister granted or refused to grant a visa, he or she was to notify the applicant of the decision in the prescribed way: s 66(1). Significantly, s 66(4) went on to provide that "[f]ailure to give notification of a decision [did] not affect the validity of the decision." The Decision was and remains a valid decision. 11 That outcome is not altogether harsh. Since 1992, s 412 in Part 7 of the Migration Act has provided that: "(1) An application for review of an RRT‑reviewable decision must: … (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and … (4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place)." (Emphasis added) The Decision was an 'RRT-reviewable decision' as that term is defined in the Migration Act: s 411 of the Migration Act. Upon being notified of the Decision in September 2005, the appellant had a period of 28 days within which to seek a review of the Decision: s 412. He did not do so. 12 Moreover, notification of the Decision cannot be treated as a separate 'decision' from the Decision for the purposes of s 476 of the Migration Act: Chung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 442. As Conti J said in Chung (at [19]): "For a decision-maker merely to communicate his or her decision to a person to be affected thereby, pursuant to his or her duty so to do, does not involve the making of a decision so to do within s 474(3), particularly where the decision-maker is subject to a statutory obligation so to do, whether explicit or implicit." 13 This appeal was conducted by the parties on the basis that ss 494B and 494C of the Migration Act prescribed the methods by which the appellant was to be notified of the Decision. Sections 494B and 494C were inserted into the Migration Act by Schedule 3 to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). They took effect on 10 August 2001 and, as a matter of statutory construction, applied to the notification of the Decision by the Minister in 2005: Pearce DC and Geddes RS, Statutory Interpretation in Australia, 5th ed, para [7.23]. 14 The appellant was notified of the Decision some 8 years after the Decision was made. The appellant does not dispute he received notification in September 2005. Counsel for the appellant contended that the notification regime in the Migration Act is strict and peremptory and that the Minister failed to comply with ss 494B and 494C. He concedes the argument is technical. The Minister contends that the notification complied with ss 494B and 494C and referred the Court to the decision of Allsop J in Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327 at [49]. I adopt the reasoning of Allsop J in Zhan at [47]-[49]. In my view, the Federal Magistrate was correct to conclude that there was notification of the decision in 2005. The letter enclosing the decision was sent within three days of its date in the manner prescribed by ss 494B(4). The fact that it enclosed the Decision made some years earlier is unfortunate but does not render the notification invalid. As noted earlier, upon being notified of the Decision in September 2005, the appellant had a period of 28 days within which to seek a review of the Decision: s 412. He did not do so. 15 Finally, the Decision was and is a 'primary decision' within the meaning of that term in Division 2 of Part 8 of the Migration Act. Accordingly, the Federal Magistrates' Court had no jurisdiction in relation to the Decision: s 476 of the Migration Act. 16 The appeal should be dismissed on this ground alone.
Ground 2 - notification given in september 2005 17 This ground of appeal substantially overlaps with ground 1 and should be dismissed on the same bases.
ground 3 - delay of over one year between notification of the Decision and the application to show cause 18 This ground of appeal substantially overlaps with ground 1 and should be dismissed on the same bases. The Federal Magistrates' Court had no jurisdiction in relation to the Decision: s 476 of the Migration Act. 19 Even if the Court did have jurisdiction, it would have been appropriate to refuse relief having regard to the delay of one year and the availability of other suitable remedies which had been available to the appellant but not utilised.
ground 4 - inappropriate for the Federal Magistrates' Court to determine that time had not expired for an application to the Tribunal 20 No appellable error has been identified. It is inappropriate for the Court to pre-empt a decision of the Tribunal as to whether it has jurisdiction. That is a question for the Tribunal: see Chung at [20].
orders 21 For those reasons, the appeal should be dismissed and the appellant should pay the respondent's costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.
Solicitor for the Appellant: Erskine Rodan & Associates
Solicitor for the Respondent: Australian Government Solicitor
MZXMI
Minister for Immigration and Citizenship