SZRLH v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This appeal is from a decision of the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) given on 1 February 2013. 2 The order then made was that the proceeding before the Federal Magistrates Court, commenced by way of application filed on 1 May 2012, be dismissed, with the applicant to pay the costs of the first respondent fixed in the amount of $4,300. 3 The appellant, referred to in these reasons as the applicant, applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 28 September 2011. The delegate decided to refuse to grant the visa on 16 January 2012 and, in the circumstances considered more fully later in these reasons, notified the applicant of the decision and his review rights by letter dated 16 January 2012. The applicant applied to the Refugee Review Tribunal (the Tribunal) on 28 February 2012 for review of the delegate's decision. The Tribunal wrote to the applicant on 7 March 2012 expressing the view that the application was not a valid application as it was not lodged within the relevant time limit and gave the applicant an opportunity to make comments on whether a valid application had been made. By letter dated 28 March 2012 the applicant responded to the Tribunal's letter saying that he had not received the decision on time and the post office did not give him any notice to collect the document. 4 The Tribunal found that the decision notice was dispatched within 3 working days of the date of the letter, 16 January 2012, in accordance with s 66(1) and 494B(4) of the Migration Act 1958 (Cth). The deemed receipt provisions of s 494C(4) operated whether or not the post office did in fact make an error by failing to promptly send a postal item collection notice to the applicant. Therefore the applicant was taken to have received the notice on 25 January 2012, being 7 working days after the date of the notice. Therefore the prescribed period of 28 days within which the application for review could be lodged ended on 22 February 2012. The application for review was not received by the Tribunal until 28 February 2012, after the prescribed period had expired. The Tribunal did not have power to accept an application for review lodged outside the prescribed period. For these reasons, the application for review was not valid and the Tribunal held it had no jurisdiction in the matter. 5 On 1 May 2012, the applicant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. As amended the grounds were: 1. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived [sic] in accordance with the requirements of the Migration Act. The Tribunal decision was fundamentally influenced by not receiving evidence from Applicant at hearing. Therefore, the Tribunal denied the applicant procedural fairness. 2. The applicant [sic] satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error. 3. The Second Respondent has failed to investigate applicant [sic] claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 13 April 2012 was effected by actual bias constituting judicial error. 6 The Federal Magistrate (as her Honour then was) set out the basis of the Tribunal's decision: s 412(1)(b) of the Migration Act stated that an application for Tribunal review must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. The relevant period prescribed by reg 4.31(2)(b) of the Migration Regulations 1994 (Cth) was 28 days. The period of 28 days commenced on the day on which the applicant was validly notified of the decision. 7 Before the Federal Magistrate the applicant said that he had not received a notice from the post office that the document had arrived for him. The applicant said that following an enquiry to the Department, he attended the post office on 27 February 2012 and received the notification letter after producing identification to the post office. The applicant said that he lodged his application for review on 28 February 2012 and that the Tribunal had not given him a chance to be heard and had not given proper consideration to his letter dated 28 March 2012 explaining his failure to lodge his review application on time. 8 The Federal Magistrate found there was no error in the Tribunal's application of the law or its findings as to the validity of the notification letter. The applicant was deemed to have received notification of the delegate's decision on 25 January 2012. In those circumstances the last day for lodging a valid application for review to the Tribunal was 22 February 2012. 9 I note that in the applicant's protection visa application, he indicated that all written communications about the application should be sent to him at the address for communications he had provided with that form. This was his current residential address at a unit in Dee Why, New South Wales. 10 A copy of the delegate's decision was sent by registered post to the unit I have referred to, that letter being dated 16 January 2012. 11 I see no error in the Tribunal's application of s 412(1)(b) of the Migration Act and regulation 4.31 of the Migration Regulations. Neither do I see any error in the judgment of the Federal Magistrates Court. 12 Each conforms to the decision of the Full Court in NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 where Stone J, with whom Madgwick and Dowsett JJ agreed, said: [5] … Under s 412(1)(b) of the Migration Act 1958 (Cth) ("the Act") an application for review of such a decision must be made within 28 days of the decision being notified. The Act and its regulations provide that if advice of a decision is posted within three days of the decision having been made then the notification of the decision is deemed to have occurred seven days after the date of the decision. In both these cases then the decision is deemed by those provisions to have been notified by 19 September or, at the very latest, 20 September 2000. [6] … it was accepted by the Tribunal and subsequently by the primary judge in this case that the documents were not received by the registry of the Tribunal until 9 November 2000. That date is a date which is well outside the 28 day period provided by the Act. [7] As a result the Tribunal decided that it had no jurisdiction to review the delegate's decision. This is based on the indisputable fact that the Act does not allow for any extension or variation of the 28 day period. 13 Section 412 of the Migration Act provided for applications for review by the Tribunal in the following terms: (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 … 14 As stated by the Full Court in VOAW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 251 at [4], s 414(1) requires the Tribunal to review a "valid application … under s 412". Although the Act does not define "valid application", it is clear that for an application to be "valid" it must comply with the requirements of s 412. 15 Regulation 4.31 of the Migration Regulations stated: (1) For the purposes of paragraph 412(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal. (2) A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of: (a) in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day -- 7 working days (beginning with the first working day that occurs on or after that day); or (b) in any other case -- 28 days … 16 Section 66 of the Act required the Minister to notify an applicant of his decision to refuse a visa, and reg 2.16 of the Migration Regulations provided that this may be done by one of a number of permissible methods listed in s 494B of the Act. In this case, the applicant was notified of the delegate's decision by mail, as contemplated by s 494B(4): (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; … 17 Section 494C provided: (4) 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 … As to the meaning of s 494C(4), in Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] the Full Court stated that nothing in the section suggested that "taken to have received the document" was merely a rebuttable presumption of fact. 18 The grounds of appeal, set out in the notice of appeal filed on 15 February 2013 were as follows: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claim and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed [sic] to observe the obligation amounted to a breach of Statutory Obligation. 2. The Federal Magistrate failed to consider that the Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived at in accordance with the requirements of the Migration Act. 19 The grounds of appeal are formulaic. They do not engage with the findings of either the Tribunal or the Federal Magistrates Court. Those grounds have not been considered by the Federal Magistrate. Further, they do not correspond with the grounds of the application to the Federal Magistrates Court which are set out above. 20 The applicant therefore would need leave to rely on his notice of appeal. The first respondent opposes leave being granted on the basis that it is not expedient in the interests of justice to allow the grounds to be argued and determined for the first time on appeal as they have no reasonable prospect of success. 21 In my opinion, because the Tribunal correctly held it had no jurisdiction and there was no error on the part of the Federal Magistrates Court, it is inappropriate to embark on the merits, if any, of these grounds. 22 To the extent that the applicant claims a denial of procedural fairness by the Tribunal, I find no error in the findings of the Federal Magistrate, that is, in light of the correspondence of 7 March 2012 from the Tribunal to the applicant (and the applicant's reply), to which I have referred at [3] above, the complaint of denial of procedural fairness is not made out. 23 The appeal must be dismissed, with costs. 24 I adopt the observations of the Full Court in NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [8]: it is very unfortunate that in this case it would appear that, entirely through no fault of the applicant, his application was not received in time. The inexorable and inevitable result is that the Tribunal had no jurisdiction to review the decision. 25 It may be that, on application under s 417 of the Migration Act, the Minister might substitute a more favourable decision, but that is not a matter before this Court on this appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.