FEDERAL COURT OF AUSTRALIA

SZUQF v Minister for Immigration and Border Protection [2015] FCA 1409

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

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

REASONS FOR JUDGMENT

1    The appellant appeals against a judgment of the Federal Circuit Court of Australia delivered on 22 July 2015. By that judgment, the primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (“the Tribunal”).

2    The appeal was listed for hearing at 10.15 am today. There has been no appearance by or on behalf of the appellant. I consider that it is appropriate to decide the appeal in the absence of the appellant.

3    The appellant is a citizen of China. On 8 August 2013 he applied for a Protection (Class XA) visa. That application was refused by a delegate of the first respondent, the Minister for Immigration and Border Protection, by letter dated 31 January 2014.

4    The appellant applied to the Tribunal for review of the Minister’s decision on 8 May 2014. On 19 June 2014 the Tribunal found that the application had been lodged outside the time prescribed under s 412(1)(b) of the Migration Act 1958 (Cth) and reg 4.31 of the Migration Regulations 1994 (Cth). The Tribunal decided that it had no jurisdiction in the matter.

5    The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 22 July 2015 the application was dismissed with costs.

6    The appellant’s notice of appeal states that it is unfair that the Tribunal did not give the appellant a chance to attend a hearing to state his grounds for applying for refugee status. The appellant has not filed any written submissions, nor, as I have indicated, has he appeared today to make any oral argument.

7    Before the Tribunal and the Federal Circuit Court the appellant explained why his application to the Tribunal was lodged late. He said that he had left the address notified as his address for service in order to obtain work. He had asked a friend to collect his mail. The friend said that he had not found any mail, including the first respondent’s letter of 31 January 2014, at the address.

8    It is necessary to consider the provisions of the Migration Act and the Migration Regulations in order to decide whether the Federal Circuit Court and the Tribunal were correct to decide that the Tribunal lacked jurisdiction to deal with the appellant’s application.

9    Section 66(1) of the Migration Act requires the Minister to notify an applicant of a decision to refuse or to grant a visa in the prescribed way. Regulation 2.16 of the Migration Regulations sets out the prescribed ways of notifying the applicant for a visa. As the decision was to refuse a visa, the notification was required to be made by one of the methods specified in s 494B of the Migration Act. Section 494B(4) provides for a document to be sent by pre-paid post within three working days of the date of the document to the last address for service or the last residential or business address provided to the Minister by the applicant for the purpose of receiving documents.

10    Section 494C(4)(a) provides that when the method in s 494B(4) is used, the person is taken to have received the document, if the document was dispatched from a place in Australia to an address in Australia, seven working days after the dispatch of the document. That provision conclusively provides that the document is taken to have been received and when it is taken to have been received: see Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64 at [8], Enjam v Minister for Immigration and Border Protection [2014] FCA 189 at [15].

11    There was evidence before the Tribunal and the Federal Circuit Court that the Minister’s letter of 31 January 2014 was dispatched by post on the same day. It was dispatched to the address for service noted by the appellant. Accordingly, it was taken to have been received by the appellant on 11 February 2014, being seven business days after the date of the letter.

12    Section 412(1)(b) of the Migration Act requires that an application for review of a Pt 7 reviewable decision must be given to the Tribunal within the prescribed period. A decision to refuse to grant a protection visa is, within s 411(1)(c), a Pt 7 reviewable decision. Regulation 4.31(2) prescribes a period of 28 days after the date on which the notice of the reviewable decision was received for the lodging of an application at a registry of the Tribunal.

13    As the appellant is taken to have been notified of the Minister’s decision on 11 February 2014 the 28 day period ended on 11 March 2014. The appellant’s application was not given to the Tribunal until 8 May 2014. The Federal Circuit Court and the Tribunal were each correct to find that this was outside the period required by s 412(1)(b) of the Migration Act. The Tribunal has no jurisdiction to review a decision if the application is given to the Tribunal outside that period: see SZULH v Minister for Immigration and Border Protection [2015] FCA 835 at [17] and the cases cited therein.

14    The Federal Circuit Court and the Tribunal were correct to decide that the Tribunal lacked jurisdiction to deal with the appellant’s application. The appeal must be dismissed with costs.

15    I will also make an order amending the name of the second respondent to Administrative Appeals Tribunal.

Associate:

Dated:    10 December 2015