VOAM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 396

FEDERAL COURT OF AUSTRALIA

VOAM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 396 MIGRATION – refusal to grant protection visa – application for review of Refugee Review Tribunal's decision that it did not have authority to review delegate's decision as application made out of time – whether Refugee Review Tribunal should have heard application – application dismissed Migration Act 1958 (Cth) Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 cited VOAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V917/02 FRENCH J 15 APRIL 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 917 OF 2002

BETWEEN: VOAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 15 APRIL 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 917 OF 2002

BETWEEN: VOAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 15 APRIL 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant is a national of Pakistan who arrived in Australia under a student visa in September 1999. He has remained in Australia since that time, except for the period 11 June 2000 to 15 July 2000 when he returned to Pakistan for a visit. On 2 August 2002, the applicant applied for a protection visa. His application was extremely brief in its explanation of his reasons for seeking protection. In answer to the question, "What do you fear may happen to you if you go back to that country?" he wrote, "Because of the world-known situation in Pakistan, I have a strong fear of being persecuted if I return to my home country." He also made reference in answer to a later question to being witness to those who had been discriminated against under the Pakistani Government due to their political opinions. 2 He nominated an address in Heidelberg Heights as his then current residential address. He also nominated an agent to act on his behalf in connection with the application and to receive documents or notifications relating to it. On 16 October 2002, a delegate of the minister refused the application for a protection visa. The delegate was not satisfied that the applicant was a political activist, nor a member of any political group. There is no evidence that his political opinion had brought him adverse attention from the authorities while living in Pakistan. He was able to leave, re-enter, and leave again on his own passport. The record of the decision and a covering letter of 16 October was sent to the applicant's agent and to his residential address on 17 October 2002. The notification contained the following statement: "Review rights: You may apply to have this decision reviewed by the Refugee Review Tribunal (RRT)/Administrative Appeals Tribunal (AAT). Information about applying for review is included with this letter. Please note there are time limits on applying for review. If you decide to apply for review, you must lodge your applications with the RRT within 28 days of receiving this letter. The RRT cannot accept late applications." 3 Despite this warning, the applicant did not lodge his application for review by the Refugee Review Tribunal ("the Tribunal") until 3 December 2002. He set out his reasons for his lateness thus: "I could not launch my application in time because i was in detention and in a state of shock and did not have anyone close to help me. One friend promised to help me & told me that he has arranged a lawyer for me and launched the application for Refugee Review Tribunal. But after the date for application had finished, i found out that he had been lying & misleading me & giving me false hope. Please kindly consider this application." (sic) 4 The Tribunal, however, held that it did not have authority to review the decision as the application was out of time. It so decided on 17 December 2002. The applicant then filed an application in this Court seeking an order of review of the Tribunal's decision on 24 December 2002. In that application he said he was aggrieved by the decision because: "I was in Detention and was not able to arrange a lawyer. I was in a state of shock & the friends outside i was relying upon kept lying that they have arranged my RRT application with lawyer." (sic) 5 Asked to set out the grounds upon which he was seeking to have the decision reviewed, he wrote: "I believe that i have reasonable ground (sic) for my application to be reviewed by RRT." Asked to state his claims, he said: "To set aside the decision of RRT and to make an order to give me a chance for my application review, as i am a genuine refugee & deserve to be given a fair chance for justice." (sic) 6 The question before the Court today is simply whether the Tribunal could have entertained the application. There is no doubt that the application was out of time. Section 412 of the Migration Act 1958 (Cth) provides in subs (1) that: "An application for review of an RRT-reviewable decision: (a) be made in the approved form;and (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and (c) be accompanied by the prescribed fee (if any)." 7 Section 414 of the Act imposes a duty on the Tribunal to review RRT-reviewable decisions in the following terms: "414(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision; (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3)." Subsection (2) is not applicable for present purposes. 8 There is no doubt that to be valid an application must comply with the requirements of s 412 and in particular that it be lodged within the period prescribed. Section 66 of the Act provides, in subs (1), that: "When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way." That is to be read in conjunction with reg 2.16(3) which indicates: "The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act." 9 Section 494B of the Act provides in subs (1): "For the purposes of provisions of this Act or the regulations that: (a) require or permit the Minister to give a document to a person (the recipient);and (b) state that the Minister must do so by one of the methods specified in this section; the methods are as follows:…" Subsection (2) relates to giving by hand; subs (3) relates to handing to a person at the last residential or business address; subs (4), which is relevant for present purposes, provides: "Another method consists of the Minister dating the document. and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by the recipient for the purpose of receiving documents; or (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents." This is to be read with s 494C which provides in subs (1): 'This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A)." Subsection (4) of section 494C reads: "If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document." 10 The letters were posted on 17 October 2002. They were sent to the last-known residential address and to the agent's address. They are deemed, therefore, to have been received on 25 October 2002 by virtue of the operation of s 494C(4)(a). The time limit prescribed by s 412 therefore expired 28 days after that on 22 November 2002. Although the provisions of the Act relating to the deemed receipt of notices have been amended and relocated in the Act, the essential requirements of ss 412 and 414 remain intact. The authority of the Full Court in Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 is still applicable. There it was said at par 31 of the judgment: "On the contrary, ss 412 and 414 clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the RRT's function. Moreover, this is not a case like Blue Sky or Murphy that is within the Normandin principle. This is not a case where individuals would suffer if invalidity were to flow from some default within the administration of a public authority that is entirely beyond the control of the individual. Here the individual, the applicant for a protection visa, is the person who has to perform the act stipulated by Parliament as an essential preliminary to the RRT's jurisdiction" See also at paragraphs 44 and 55. 11 In my opinion, therefore, there is no basis upon which the Tribunal had authority to entertain this application. The application for review of the Tribunal's decision must be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.