SZNOZ v Minister for Immigration

[2009] FMCA 943

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOZ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 943

MIGRATION – Refugee Review Tribunal – practice and procedure – whether to grant applicant leave to give oral evidence.

Migration Regulations 1994 (Cth), reg.35; 35(1); 35(2); 173

Applicant: SZNOZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1138 of 2009

Judgment of: Emmett FM

Hearing date: 10 September 2009

Date of Last Submission: 10 September 2009

Delivered at: Sydney

Delivered on: 10 September 2009

REPRESENTATION

Applicant appeared in person assisted by a Bengali interpreter

Counsel for the Respondent: Ms L. Clegg

Solicitors for the Respondent: Mr R. White, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1138 of 2009

SZNOZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant seeks leave to give evidence orally in support of his application to this Court for judicial review of a decision of the Refugee Review Tribunal, dated 22 April 2009.  The Tribunal’s decision relates to the review of a decision of a delegate of the Minister of the relevant department in 1991.  The reasons for refusing the applicant’s application for a protection visa were attached to a letter from an officer of the department, dated 11 September 1991, refusing the applicant’s application for a protection visa.

2. The Tribunal determined that it had no jurisdiction to consider the applicant’s application for review on the basis that the application for review, filed on 4 March 2009, in respect of the 1991 delegate’s decision was filed well outside of the statutory mandatory time period for the lodging of an application for review of a delegate’s decision.  

3. The first respondent opposes leave on the basis that there would be no utility in granting leave. The first respondent tendered a bundle of relevant documents identified as the court book filed on 17 June 2009. Those documents, inter alia, disclose that, on 28 October 1991, a copy of the delegate’s decision was sent to the applicant at the address provided by the applicant as his residential address. A copy was also sent to the applicant’s migration agent. 

4. In accordance with the relevant regulation 35 at the time, where a document is served on a person by post in accordance with regulation 173, service is taken to have been effected on the expiry of five working days after the date of posting. 

5. Regulation 35 stated that the Minister must give an applicant written notice of a decision in respect of a visa application by posting the notice to the latest address for service provided by the applicant in relation to the application, or by posting the notice to the residential address provided by the applicant in the application.  

6. Regulation 35(2) stated that, where notice of a decision is served on the applicant under sub-regulation (1), service is to be taken to be effected as if the notice was a document to which regulation 173 applies. 

7. The letter notifying the applicant dated 28 October 1991 was sent to the only address provided by the applicant on his protection visa application.

8. The bundle of relevant documents also discloses a copy of the letter from the department, dated 28 October 1991, date-stamped by the Department “Received 17 December 1991”.  Further, the first respondent tendered a three page document from the department’s file marked Exhibit 2R.  That document is headed “Personal Particulars – Finalised DORS Application”.  The particulars record the last residential address of the applicant, that being the same address to which the notification letter was sent, and under a section of that document headed “Comments”, there is a handwritten note:

   “Rejection letters for DORS “Returned to Sender”, 17.12.91.  No recent forwarding address.”

9. Counsel for the first respondent submits that, in the circumstances, the overwhelming inference is that the letter notifying the applicant of the delegate’s decision was sent to the applicant in accordance with the relevant statutory scheme for notification at the time. 

10. On 23 July 2009, the applicant filed an affidavit, affirmed 23 July 2009, annexing six documents that were irrelevant to the determination that the Court must make.  That affidavit was objected to by the first respondent and was rejected. 

11. The applicant filed no other evidence in support of his application. It is for that reason that the applicant now seeks the leave of the Court to give oral evidence in support of his application relating to his conduct since 1991.

12. However, in circumstances where the evidence before the Court leads to the plain inference that the applicant was notified in accordance with the statutory regime at the time, it is my view that there is no utility in granting leave to adduce further evidence explaining his conduct in the past 18 years.  It would appear that the Tribunal had no jurisdiction to entertain the applicant’s review because the application for review was filed outside the mandatory statutory time limits.  Accordingly, any explanation that the applicant may give about his conduct for the last 18 years could not address or overcome that hurdle. 

13. In any event, the applicant has had an opportunity to file evidence. The applicant attended a directions hearing before me on 15 June 2009, at which time the applicant was directed to file and serve, by way of affidavit, any additional evidence to be relied upon by 27 July 2009. Further, the applicant participated in the Court’s legal advice scheme and received advice in accordance with that scheme on 25 June 2009. At the directions hearing before me, the applicant was provided, in documents written in his own language, with the contact details of legal services providers and the contact details of translation and interpreting services.

14. In the circumstances, the applicant’s application for leave to give oral evidence is refused. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  23 September 2009