FEDERAL COURT OF AUSTRALIA

CITIZENSHIP and MIGRATION - whether Refugee Review Tribunal erred in deciding that it lacked jurisdiction to review the decision of the Minister’s delegate to refuse protection visa - whether the applicant was notified of the delegate’s decision “in the prescribed way” - whether the applicant had, in fact, notified the Department of his change of address prior to the decision being notified

Migration Act 1958 (Cth) s 66(1), 53, 412(1)(b), 476

Migration Regulations reg 2.16(1)(c)

Shrestha v Minister for Immigration and Multicultural Affairs (unreported decision of Sackville J Federal Court, 13 October 1997) Appl

Tabet v The Minister for Immigration and Multicultural Affairs, (unreported decision of Mansfield J, Federal Court, 23 June 1997) Appl

MUSNI TJANDRA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

QG 161 OF 1997

Kiefel J

Brisbane

27 March 1998

AN APPLICATION TO REVIEW A DECISION OF THE REFUGEE REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1.         The application be dismissed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AN APPLICATION TO REVIEW A DECISION OF THE REFUGEE REVIEW TRIBUNAL

REASONS FOR JUDGMENT

On 13 December 1996 the applicant lodged an application for a protection visa in which he claimed refugee status.  The applicant had arrived in Australia from Indonesia on a temporary visitor visa in October 1994.  The Minister’s delegate wrote to the applicant on 28 January 1997 at the residential address provided as his address for correspondence, 454 Marrickville Road, Marrickville, advising that future correspondence would be forwarded to this address but that he could nominate one other person to receive letters and notifications concerning his application.  He was advised that that person’s address would need to be advised, and that should he change his address for more than fourteen days, the department would need to be informed.  The form necessary for these purposes was identified.  The letter also warned that if the information concerning any change of address was not given, he would be taken to have received notification sent to his last address.

Section 66(1) Migration Act 1958 (Cth) provides that the Minister is to notify a grant or refusal of a visa by notifying the applicant “in the prescribed way”.  The Minister’s delegate here advised of the refusal of the application by letter dated 20 March 1997, sent by registered post to the applicant at the Marrickville address.  The notification further informed the applicant, as required, of the possibility of review and of the time within which application for it must be made (see s 66(1)(d)).  The receipt of that notification at the address is not in issue, but the time when the applicant became aware of it is.  The applicant did not apply for review until 9 May 1997, well outside the period permitted for application for review.  I shall refer to the terms of that application and his accompanying letter shortly.

Regulation 2.16(1)(c) provides that, for the purposes of s 66(1), the Minister is to notify an applicant of a decision by sending a notification to the last address given by the applicant under s 53.  Section 53(1) requires a visa applicant to tell the Minister the address at which the applicant intends to live while the application is being dealt with and subsection (2) requires notification of the change of that address.  Subsection 53(3) provides that a notification sent or left at that address is to be taken to have been received, even if it was not.  Section 412(1)(b) limits the time for the bringing of applications, which period commences from notification.

There is no other provision which would ameliorate the effects of s 53.  That such limitations can operate unjustly, as where a right of review might be lost to applicants who had in fact no notice of decision, through no fault of their own, has been the subject of other judicial comment:  see, for example, Shrestha v Minister for Immigration and Multicultural Affairs (unreported decision of Sackville J, Federal Court, 13 October 1997);  Tabet v The Minister for Immigration and Multicultural Affairs, (unreported decision of Mansfield J, Federal Court, 23 June 1997).  The need for some requirements such as those in s 53 were no doubt brought about by a perceived need to be able to establish notification and where difficulties had been experienced in the past.  There is, in any event, no reason in my view to doubt the cases which hold that the provisions must be given their effect, the cases discussed by Sackville J in Shrestha v Minister for Immigration.

The central question here is whether the applicant did in fact notify a change of address as required by s 53(2), as he contends he had.  If that be the case the notification by the delegate did not comply with the requirements of the Act and regulations.  I put to one side, for present purposes, the further requirement that the address notified be that where he intended to live, the respondent’s secondary submission.

The applicant alleged that he had sent a change of address to the department on about 12 March 1997, prior to the date of refusal.  The department’s records do not contain any such document nor advices to that effect.  There is no other documentary evidence of it.  A copy of the form, which the applicant said he retained, was not produced to the Court.  The applicant said that he thought a copy of it might be at his former address at Marrickville, the residence of a friend of his, but it would not appear that he has taken any steps to locate it.  I should add here that the impression I formed of Mr Tjandra was of an intelligent person who was able to understand what was required of him.  His correspondence, to which I shall shortly refer, provides a good indication of this. 

The application for review was dated 7 May 1997 and was received in the Refugee Review Tribunal on 9 May 1997.  It provided as the applicant’s address, the same address at Marrickville referred to above.  In a letter accompanying that application he apologised for the lateness in seeking review, and advised that he had resided with a friend at Redfern for a few weeks and did not know that he was to inform the department about that.  In evidence the applicant said that he was at the Redfern address sometime in February/March 1997.  In the letter of 7 May 1997 he said that he was still at Redfern when the delegate’s letter of 20 March 1997 was posted.  He also advised that he had given a friend his identification card, so that he might collect any letter from the department from the post office and send it to him. 

A few matters might be observed at this point.  In the first place, the applicant’s apparent lack of knowledge about informing the department of his change of address does not sit conformably with his present allegation that a change of address had been notified.  It certainly does not appear to be consistent with an assertion that he had in fact advised of a change of address on 12 March 1997, even making some allowance for the politeness of his response and his perceived need to apologise for his error or delay.  He also said that he left it to a friend to pick up the letter, which suggests that he knew he needed to be advised of it. 

By letter dated 6 August 1997, the Refugee Review Tribunal wrote to the applicant seeking submissions and information concerning the receipt of the application outside the statutory time limit.  The letter detailed the sequence and timing of events and it necessarily excluded any reference to the receipt of advices to a change of address from the applicant on about 12 March 1997.  On 20 August 1997 the department received a change of address form from the applicant notifying a new residential and postal address as “PO Box H24 Hulstone Park NSW” and indicating that the old residential address was that at Marrickville.  In his letter dated 29 August 1997 to the Tribunal the applicant advised that he had just received the letter dated 6 August 1997 from his contact officer.  It would appear from his concession in evidence, however, that he sent the change of address form dated 20 August after receipt of that letter.  The letter of 29 August 1997 went on to explain his recent change of address and admitted that the lateness in his application was his error.  Once again, accepting that Mr Tjandra may have understood a need for politeness and apology in his communications with the Tribunal, the letter discloses an understanding of the need to address the reasons for lateness.  In this respect he made no mention at all of any previous advice of a change of address.

The Refugee Review Tribunal concluded, in its determination of 2 September 1977, that the application for review could not be entertained, as it was lodged outside the time limited, by s 412(1)(b).  The Tribunal did not have before it any claim that the notification of the delegate’s decision had been sent to an address other than that last advised by the applicant.  The correct grounds for review under s 476 Migration Act were not identified in submissions, but it appears to have been accepted by the respondent that the decision of the Tribunal was liable to be set aside, were the applicant to make out his case on the additional facts upon which he now relies.  I am not however able to accept the veracity of that claim.  In these circumstances there is nothing to show that the Tribunal’s decision was affected by relevant error.

It is unnecessary for me to deal with the respondent’s second contention, namely that even had a change of address been given, it could not have been of an address where the applicant intended to live.

The application for review must be refused. 

Associate:

Dated:              27 March 1998