FEDERAL COURT OF AUSTRALIA

SZTQW v Minister for Immigration and Border Protection [2015] FCA 112

THE COURT ORDERS THAT:

The appeal be dismissed with costs, to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a decision of a Federal Circuit Court Judge, in turn dismissing an application for a review of a decision of the Refugee Review Tribunal (“Tribunal”). The Tribunal had formed the view that it did not have jurisdiction in this matter by operation of s 412(1)(b) of the Migration Act 1958 (Cth) (“Act”) and reg 4.31 of the Migration Regulations 1994 (Cth) (“Regulations”). It is important to consider the background facts before turning to the appeal before this Court.

Decision in the Tribunal

2    The application before the Tribunal was to review the decision of a delegate of the Minister, dated 16 July 2013, to refuse to grant a protection visa under s 65 of the Act. The Tribunal noted that the review application had been lodged with the Tribunal on 23 August 2013, however s 412(1)(b) of the Act and reg 4.31 of the Regulations require that an application for review of the delegate’s decision to be made within 28 days after an applicant is taken to be notified of the decision.

3    In summary, the Tribunal observed:

    The appellant was notified of the delegate’s decision by letter dated 16 July 2013 and dispatched by post.

    This form of notification accords with s 494B(4) of the Act, which provides that one method for dispatch of documents to a person is by prepaid post to the last address for service provided to the Minister by the recipient for the purposes of receiving documents.

    Section 494C(4) provides that if the Minister provides a document to a person by a method prescribed in s 494B(4), the person is taken to have received the document 7 working days after the document is dispatched, if the document is dispatched from a place in Australia to an address in Australia.

    The effect of these provisions was that the appellant was deemed to have received the letter notifying him of the delegate’s decision by 25 July 2013 (being 7 working days after 16 July 2013).

    The expiration of 28 days from 25 July 2013 was 22 August 2013.

    The Tribunal acknowledged the appellant’s review application by letter dated 28 August 2013 sent to his nominated postal address, being a post office box in Dulwich Hill in New South Wales. This letter (“returned letter”) was returned to the Tribunal by Australia Post marked as unknown at that address and no such post office box.

    A copy of the returned letter was sent to the appellant’s residential address, a street address in Campsie, New South Wales.

    The appellant lodged a review application in respect of the delegate’s decision on 23 August 2013.

    On 10 September 2013 the Tribunal wrote to the appellant at both the nominated postal address and his nominated street address, indicating that:

o    in accordance with s 494C(4) of the Act, the day on which the appellant was taken to have been notified of the primary decision of the delegate was 25 July 2013;

o    the Tribunal officer was of the view that the appellant’s application was not valid as it was not lodged by 22 August 2013;

o    the appellant could make comments on whether a valid application had been made until 3 October 2013.

    the letter of 10 September 2013 which was posted to the appellant’s nominated postal address was returned to the Tribunal as unknown at that address and no such post office box.

    The appellant rang the Tribunal on 4 October 2013 referring to the correspondence of 10 September 2013 requesting an extension of time due to illness. He was advised that an extension of time to make comments would be granted.

    On 9 October 2013 the appellant wrote to the Tribunal indicating that he had had serious surgery and seeking an extension of two weeks to respond to the Tribunal’s letter of 10 September 2013.

    On 11 October 2013 the appellant telephoned the Tribunal, using a friend as an interpreter, and informed the Tribunal that:

o    he would not provide a telephone number or an email address to the Tribunal for contact purposes;

o    the Tribunal had the correct address for correspondence, being the post office box in Dulwich Hill provided in the review application.

    A further letter was sent to the appellant on 14 October 2013 to both addresses indicating that the appellant’s response was now due on 28 October 2013 and no further extensions of time would be granted.

    The letter of 14 October 2013 sent to the Dulwich Hill post box address was returned to the Tribunal in the same manner as had previously occurred.

    No further communication of any kind was received by the Tribunal from the appellant.

4    The Tribunal concluded:

… in accordance with s. 494C of the Act, the applicant is taken to have been notified of the decision on 25 July 2013. Therefore the prescribed period within which the review application could be made ended on 22 August 2013. As the application for review was not received by the Tribunal until 23 August 2013 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

Decision of the Federal Circuit Court

5    The appellant sought review of the decision of the Tribunal in the Federal Circuit Court on three grounds, namely:

1.    The Tribunal erred in law in deciding that it did not have jurisdiction on the matter under review;

2.    The Tribunal erred in deciding that the notification of the Department was correctly made; and

3.    The Tribunal erred in law in sending letters to my home address and not to my nominated mailing address. As a result, I was not able to collect these letters and I was not in a position to make a response to the Tribunal’s letters.

6    The primary judge found that these grounds of review lacked merit. In particular, her Honour observed:

    Grounds 1 and 2 could be considered together, and required consideration of the adequacy of the notification of the delegate’s decision.

    Her Honour was satisfied that the notification letter had been dispatched on 16 July 2013 and that the prescribed period within which the review application could be lodged with the Tribunal ended on 22 August 2013.

    The address specified by the appellant as his nominated postal address on 3 April 2013 was described as “PO Box [specified] Dulwich Hill, NSW, 2203”. By letter dated 28 May 2013 the appellant asked that all communications be forwarded to “PO [sic] [specified] Dulwich Hill NSW 2206”. It is not controversial that the correct postcode for Dulwich Hill is 2203. The postcode set out by the Tribunal on its correspondence with the appellant was 2203. In any event there is authority that a postcode is not an essential part of the identification of the physical location of one’s place of residence (SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 and SZLBR v Minister for Immigration and Citizenship [2008] FCAFC 85).

    The appellant had not sought to contend that he did not in fact receive the letter containing the delegate’s decision (at [39]).

    The contention that the Tribunal erred by sending the letters to the appellant’s home address and not his nominated mailing address had no merit (at [48]-[52]).

Proceedings in this Court

7    At the hearing the appellant was self-represented. The Minister had legal representation.

8    The sole ground of appeal was as follows:

Her Honour Barnes J erred in defining the legal validity of an incorrectly written address. Notification of the decision to refuse to grant this appellant a visa was sent to an address which contained a postcode different to the one provided by the appellant. Questions in this appeal would be

a)    Whether or not this means the notification failed to comply with the legal requirement to send communications to the appellant to the “address” he nominated.

b)    Whether sending notification to the address nominated by a visa applicant is one of pre-requisite of the life of seven (7) working days to commence.

9    This morning I raised with the parties the question of how the appellant could have received the notification letter of 16 July 2013 from the Tribunal if it had been returned to sender. The appellant, through the interpreter, informed me that he had received the letters delivered to the post office box but was not permitted to collect them because he could not provide identification satisfactory to the post office staff. This admission is somewhat confusing, however I note that it is consistent with the finding of the primary Judge that the appellant produced no evidence that he had not received relevant Tribunal correspondence.

10    In the circumstances I am not satisfied that the ground of appeal before me is substantiated. I am not satisfied that the learned primary Judge erred in noting that the postcode provided by the appellant as that of Dulwich Hill was in fact incorrect, or that the Tribunal made an error going to jurisdiction in simply correcting that detail to facilitate delivery of mail to what was otherwise the post office box and suburb notified by the appellant. Further, I respectfully agree with her Honour’s analysis of SZKGF and SZLBR so far as concerns any errors in transcribing the postcode, where there is a clear absence of any practical injustice or inconvenience to the appellant as a result of that error. Indeed, as her Honour noted at [43], it appears that the appellant received the correspondence from the Tribunal. The appellant can point to no error of the Tribunal which apparently caused him to lodge his application for review out of time.

11    I accept the submission by the Minister that there is no statutory power in the Tribunal to extend the time limit to an applicant before it to lodge a review application outside the period prescribed by s 412(1)(b) of the Act and reg 4.31 of the Regulations where the Tribunal has complied with its statutory notification obligations.

12    No appealable error is demonstrated. The appeal is dismissed with costs, to be taxed if not otherwise agreed.

Associate:

Dated:    23 February 2015