SZUOV v Minister for Immigration and Border Protection

1. The application for an extension of time filed on 10 March 2017 is dismissed.
2. The applicant is to pay the first respondent's costs of and incidental to the application filed on 10 March 2017 fixed in the sum of $3,230. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 This is an application under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time within which to file a notice of appeal from a judgment of the Federal Circuit Court of Australia delivered on 25 January 2017 (SZUOV v Minister for Immigration & Anor [2017] FCCA 104). In that judgment, the Federal Circuit Court dismissed the applicant's application for judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, (the Tribunal) dated 11 June 2014. In its decision, the Tribunal found that it did not have jurisdiction to review the decision of a delegate of the Minister, the first respondent, to refuse to grant a Protection (Class XA) visa because the applicant's application was outside the time limit set by s 412(1)(b) of the Migration Act 1958 (Cth) (the Act). 2 That conclusion flowed from the following matters. First, the delegate's decision was posted to the applicant on 24 January 2014. Secondly, under s 412C(4)(a) of the Act, the applicant was deemed to have received notification of that decision on 4 February 2014. Thirdly, and consequently, under s 412(1)(b) of the Act and reg 4.31(2) of the Migration Regulations 1994 (Cth), as in force at the relevant time, the period within which the applicant could make a valid application to the Tribunal for review of the delegate's decision expired on 5 March 2014. Finally, since the applicant did not make his application to the Tribunal until 5 May 2014, he was approximately two months late in doing so. 3 The current application was accompanied by an affidavit in which the applicant deposed to the following facts: 1. When I receive the ORDER form the Federal Circuit Court of Australia, I requested my friend to find a person who can assist me prepare my applying document to the Federal Court of Australia. But he told me that the gentle man who could help was on holidays in China. Now he returned to Australia and helped me complete the applying documents. But it is over the Court's limited time. I have to implore the Federal Court officer to consider my situation and accept my application. 2. On 3 Jan. 2013 two local policemen visited my home and told me to come to the police station for a recorded interview as 1 had been teaching the Gospel and been slandered as an evil member by the authority. I was locked in the cold room for four hours and warned not to teach Gospel and told if I was found doing it again, I would be severely punished. I had joined our local evangelical church as I wanted to pursue my religious belief. Because of the China authority's deprived of my religious belief and brutally persecuted me, I had to leave China for Australia in order to seek protection. But the member of IDBP did not accept my claims and refused my protection application. When I worked far away from Hurstville, I asked my landlord to collect my al letters and call me to back. But he ignored my request which caused the serious result that When I could not attend the interview of IDBP to state my claims and reply the member's questions. And also caused me not to lodge my application to Administrative AppealsTribunal /Migration & Refugee Review Division in limited time for which Administrative Appeals Tribunal / Migration & Refugee Review Division refused my application without inviting me before the member to state my claim and replying his question. I think it was unfair because the member made jurisdictional error while making his decision. Unfortunately, the Federal Circuit Court failed to pay attention to it. (Errors in original) 4 The applicant's affidavit also contained a draft notice of appeal which repeated verbatim paragraph 2 above as the grounds of appeal. 5 At the hearing of this application, the applicant applied for an adjournment to file further material in support of his application. The Minister opposed that application on the grounds that the applicant's application was futile. I refused that application on two main bases. First, since the applicant's application was filed more than five months before the hearing date, I considered he had therefore had ample time to file whatever supporting materials he wished to. Secondly, and in any event, as the following reasons show, I considered his application was futile. 6 In his decision, the primary judge set out the statutory provisions relevant to the Tribunal's jurisdiction as follows (at [11]-[15]): 11. It [is] trite to say that the answer to the question as to whether the Tribunal has jurisdiction to review the delegate's decision is governed by the Act. The Act sets out a statutory and regulatory scheme which, in effect, establishes that if an applicant has been properly notified of a delegate's decision according to the relevant statutory and regulatory requirements, an application for review must be made within a particular time limit. If it is not made within that limit, the Tribunal has no jurisdiction to review the delegate's decision. 12. Section 66(1) of the Act requires the Minister to notify an applicant when a decision is made to either grant or refuse to grant a visa. Such notification must be made in the prescribed way. Section 494B(4) of the Act and reg.2.16(3) of the Migration Regulations 1994 (Cth) ("the Regulations") provide that the Minister may satisfy this obligation by dating and dispatching the relevant document by prepaid post to the last address for service provided to the Minister by the recipient for the purpose of receiving documents. 13. Section 412(1)(b) of the Act provides that an application to the Tribunal for review of a protection visa decision must be given to the Tribunal within the prescribed period, being a period ending "not later than 28 days after the notification" of the delegate's decision. 14. Regulation 4.31(2) of the Regulations prescribes the time limit for the purposes of s.412(1)(b) of the Act, as being 28 days after the day the applicant is notified of the decision, subject to the applicant not being in immigration detention on that day. 15. Section 494C(4) of the Act provides that if the Minister gives a document to a person by one of the methods set out in s.494B of the Act, in this case, s.494B(4) of the Act, and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the document 7 working days after the date of the document. 7 As I remarked recently in Bui v Minister for Immigration and Border Protection [2017] FCA 714 (at [11]), with respect to the operation of substantially similar provisions of the Act: … [I]t has been held that the deemed receipt of the notification of the delegate's decision is not rebuttable: see Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 at [17] per O'Connor and Mansfield JJ and Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13]-[14] per Spender, Kiefel and Dowsett JJ. Secondly, there is no provision in the Act which allows the Tribunal, or a Court, to override, or extend, the time limit set by s 347(1)(b). Thirdly, the filing of an application with the Tribunal within that time limit has been held to be a prerequisite to the existence of the Tribunal's jurisdiction: see Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407; [2000] FCA 324 per Dowsett, Finkelstein and Heerey JJ and VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311 at [32]-[33] per Gray, Whitlam and Mansfield JJ. 8 It necessarily follows that the Tribunal was correct in finding that it did not have jurisdiction to review the delegate's decision. It follows further that the Federal Circuit Court Judge was correct to dismiss the applicant's application for a judicial review of that decision. Finally, since the Federal Circuit Court's decision was correct, it would be futile to entertain the applicant's application for an extension of time to appeal the latter decision. Accordingly, this application must be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.