FEDERAL COURT OF AUSTRALIA

SZKTR v Minister for Immigration and Citizenship [2007] FCA 1767

Migration Act 1958 (Cth) s 441A(4)(c), s 430B(6)(b)

SZFLM v Minister for Immigration and Citizenship [2007] FCA 863

SZKTR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1847 OF 2007

MARSHALL J

20 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal fixed at $2,200.00.

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

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of the Federal Magistrates Court which rejected his application for judicial review of a decision of the Refugee Review Tribunal (Tribunal): see SZKTR v Minister for Immigration and Citizenship [2007] FMCA 1447.

2                     The Tribunal had affirmed a decision of a delegate of the first respondent Minister that the appellant was not entitled to a protection visa. The Tribunal did not accept that the appellant had a well founded fear of persecution for a reason stated in the Refugees Convention if returned to China. The Tribunal handed down its decision on 22 May 2007. The decision is dated 1 May 2007. The appellant claims that he did not receive a copy of the decision until he visited the Tribunal on 12 June 2007.

3                     The Tribunal sent the appellant a copy of the decision on 22 May 2007. It sent the decision to the residential address notified by the appellant to the Tribunal for service of documents on him. On 11 May 2007, between the date of the decision and its handing down, the appellant notified a change of address. He notified a new postal address but did not alter his residential address.

4                     Under s 441A(4)(c)(ii) of the Migration Act 1958 (Cth) (the Act), the decision can be sent by prepaid means to the last residential address notified by the applicant for a protection visa. The Federal Magistrate referred to s 441A(4)(c) of the Act. He also referred to s 430B(6)(b) of the Act which permits the giving of the decision to an applicant by one of the methods specified in s 441A.

5                     The Federal Magistrate held that the decision had been given to the appellant by the Tribunal posting it to his residential address. Section 441A(4)(b) of the Act requires the decision to be sent by prepaid post or other prepaid means. I can find no evidence in the court book to suggest that it was sent by prepaid means. However, as his Honour observed, a breach of s 430B of the Act does not result in a jurisdictional error but suspends the running of time for the purposes of the statutory time limits for judicial review; see SZFLM v Minister for Immigration and Citizenship [2007] FCA 863, per Madgwick J.

6                     The appellant challenged the correctness of the Federal Magistrate’s judgment on this topic. That challenge fails. For the reasons given by his Honour, assuming a breach of s 430B of the Act had occurred, no jurisdictional error ensued.

7                     The second ground raised before the Court below and repeated in the notice of appeal is that the Tribunal breached s 424A of the Act, by failing to invite the appellant to comment on information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.

8                     The Federal Magistrate noted that the appellant failed to particularise the alleged breach of s 424A. He noted that the Tribunal had sent a s 424A letter to the appellant inviting comment on material contained in his protection visa application and certain country information. In the absence of specification of any particular breach of s 424A that claim could not be made out. As no specification has been advanced on appeal, it cannot succeed now as well. Indeed the appellant advanced no oral argument on the appeal on this second issue.

9                     For the foregoing reasons the appeal must be dismissed with costs.

Associate:

Dated:         20 November 2007