FEDERAL COURT OF AUSTRALIA

SZULH v Minister for Immigration and Border Protection [2015] FCA 835

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to “Administrative Appeals Tribunal”.

2.    The application for an extension of time and for leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

Introduction

1    This is an application for an extension of time and for leave to appeal from orders of the Federal Circuit Court of Australia made on 9 March 2015 dismissing, with costs, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application made to that Court on 29 May 2014: see SZULH v Minister for Immigration [2015] FCCA 909.

2    The application to this Court was filed on 27 April 2015. The applicant’s affidavit affirmed on 8 April 2015 states that the applicant did not know to lodge his application to this Court within 20 days so he lodged the application beyond the time limited. The affidavit also attaches a Draft Notice of Appeal stating the grounds of appeal as follows (errors in original):

1.    I operated gravel plant business in Lincheng District, Qingdao, China. Our village would stop the lease for thirty years for my business was profitable. I lodged my complain to Qingdao Cityauthorities. They hired thug to threaten me to sign their lease termination agreement and not making any further petitions. I feared my life safety. I had to leave China for Australia for protection.

2.    I think the Tribunal member failed taking all my claim and evidence into account according to S91 R of Migration Act 1958 making jurisdictional error.

3    It may be said at once that the draft notice of appeal does not engage with the reasons of the Tribunal dated 22 May 2014 which were that the Refugee Review Tribunal (the Tribunal) did not have jurisdiction as the application for review to it was out of time.

4    The applicant filed no written submissions in support of his application to this Court and, on his appearance on the application, with an interpreter, he made no oral submissions in support of his application except to reaffirm that he had not received the letter of the delegate dated 30 January 2014. The applicant did confirm that he had received the written submissions to this Court on behalf the Minister, to which I now turn.

5    The Minister, by written submissions dated 5 August 2015, contends that the application for an extension of time should be refused; if that application is granted, leave to appeal should be refused; and, even if an extension of time and leave to appeal is granted, the appeal should be dismissed with costs. The Minister’s submissions followed and supported the reasons of the primary judge.

6    In light of the applicant’s explanation for the delay, I would be minded to grant an extension of time and leave to appeal if there were any merit in the appeal itself. However, as will appear, there is no reason to doubt the conclusion of the primary judge that the applicant’s application to that Court raised no arguable case. I reach the same conclusion as to the application to this Court.

Consideration

7    As found by the primary judge, the delegate of the Minister sent a letter dated 30 January 2014, via registered post, to the applicant’s residential address notifying him of the decision on his application for a Protection (Class XA) visa. The letter was sent in an envelope with a “Registered Post Prepaid Label” on 31 January 2014. The letter was sent to the address for service provided by the applicant in his visa application form for the purpose of receiving correspondence from the Minister’s Department. The letter was marked by Australia Post on 18 February 2014 as “return to sender” for reason of being “unclaimed”: the returned letter was received by the Department on 19 February 2014.

8    The primary judge accepted that the applicant did not receive the delegate’s letter until 20 March 2014.

9    The applicant applied for review to the Tribunal on 26 March 2014, once the Department had sent a further copy of the delegate’s letter and decision of 30 January 2014 to the applicant on 18 March 2014 following the applicant’s notification on 11 March 2014 of a change of details, although not of a change of residential address.

10    The primary judge analysed the statutory scheme and concluded that the applicant was taken to have received the letter of 30 January 2014 seven working days after the date of the letter, being 10 February 2014, the date of notification as found by the Tribunal. The primary judge also found that there was no error in the Tribunal’s calculation that the relevant 28 day period for applying to the Tribunal ended on 10 March 2014.

11    The statutory provisions referred to by the primary judge were as follows. Section 412(1)(b) of the Migration Act 1958 (Cth) requires that an application for review be given to the Tribunal within the period prescribed. Regulation 4.31 of the Migration Regulations 1994 (Cth) prescribes the period as 28 days commencing on the day the applicant is notified of the decision.

12    As held by the primary judge, the statutory requirements as to “notification” begin with s 66(1) of the Migration Act, which states that when the Minister refuses to grant a visa the Minister is to notify the applicant of the decision in the prescribed way. Regulation 2.16(3) requires the Minister to notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Migration Act.

13    The relevant provision is s 494B(4) which states that a method consists of the Minister dating the document and then dispatching it within three working days of the date of the document and by prepaid post to, relevantly here, the last address for service provided to the Minister by the recipient for the purpose of receiving documents. The primary judge held that the letter was sent, by prepaid post, within three working days of the date of the letter to the last address for service provided to the Minister by the applicant for the purpose of receiving correspondence.

14    Section 66(2) also states that notification must, if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, specify that criterion; give written reasons why the criterion was not satisfied; and set out the applicant’s rights of review. The letter of 30 January 2014 ( CB 44), met those requirements.

15    Thus, the primary judge held, s 494C(4) of the Migration Act operated so that the applicant was taken to have received the letter seven working days after the date of the letter, that date being 10 February 2014, the date of notification as found by the Tribunal.

16    None of these findings were put in issue by the applicant on the present application.

17    For completeness, I note that in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407, Heerey J at [31] construed s 412 as making plain that if an application is not made in accordance with s 412, the application is not a valid one and the Tribunal has no jurisdiction to review the primary decision under s 414. See also Finkelstein J at [44 ff] and Dowsett J at [55]. That view was affirmed by a Full Court in VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; 133 FCR 570 at [33] per Gray, Whitlam and Mansfield JJ. Fernando and VEAN have been applied in a number of decisions, for example, SZJMY v Minister for Immigration and Citizenship [2008] FCA 708 at [9]–[10] per Flick J and SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 at [10] per Flick J.

Conclusion and orders

18    As I have indicated, there is no reason to doubt the conclusion of the primary judge that the applicant’s application to that Court raises no arguable case. The application to this Court similarly raises no arguable case.

19    In those circumstances, the application for an extension of time and for leave to appeal is refused. The applicant should pay the first respondent’s costs.

20    The name of the second respondent, the Refugee Review Tribunal, should be amended to the “Administrative Appeals Tribunal”.

Associate:

Dated:    12 August 2015