SZJMY & Anor v Minister for Immigration & Citizenship & Anor [2008] HCATrans 324 (15 September 2008)

Last Updated: 16 September 2008

[2008] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S208 of 2008

B e t w e e n -

SZJMY

First Applicant

SZJMZ

Second Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Application for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 SEPTEMBER 2008, AT 9.29 AM

Copyright in the High Court of Australia
SZJMY appeared in person.

MS R.S. FRANCOIS: If the Court pleases, I appear for the first respondent. (instructed by Clayton Utz Lawyers)

CHELAT QUASIM, sworn as interpreter:

HIS HONOUR: I should first say that the second respondent has filed an appearance indicating that it will submit to any order that the Court may make, except as to costs. Now, could you tell the applicants that I have read all the documents that have been filed in this matter, including the submission of 10 September 2008. Could you ask them if there is anything they wish to add? If you can just translate what he says as he goes along.

SZJMY (through interpreter): I said yes. When we came over here we presented our case to RRT and from there onwards nothing has happened in connection with our case. They had no opportunity to explain in support of our application and also we are not in a position to return back to our country. Our request to this honourable Court is this, that what is submitted to this honourable Court, please go through it and at least give us an opportunity to explain our position. Previous courts always said or held the opinion that we cannot make a decision on your case. So therefore our repeated request is this, that at least a humanitarian consideration even if we have made a mistake in not giving things in time. Therefore, God sees the truth. Therefore, we request this honourable Court to go along with that truth.

Because of this hanging situation in our case, we have been suffering for the last two years and our children back at home are the same situation. We are not able to support them as we could have. We have a very painful time passing and we are experiencing that when we are falling sick.....see several problems like flu and all. We are not able to approach a doctor to get the proper advice or treatment.

If we go back, our situation is more troublesome or more risky or more dangerous, so in order to avoid that we could have waited here till our case is decided, but till that time we are not given an opportunity to hear our problem. Nobody listens to us. So therefore our repeated request is this, that please go through our case, give us an opportunity to explain our problem and this Court or this country is capable of listening and doing the remedial things.

This country is giving protection to a good many people I have come to know and we, being Christians, we approached this country with great expectations but it turned out to be mighty unfortunate for us. When we have problems like sickness we are not able to do any treatment. Now, we are in this country with you, God has blessed you greatly. Therefore, God says “As you love, you love your neighbour too”. So I do not prolong my request. All that I say is what I have so far said and we leave the rest to the goodwill of this Court and to the goodwill of God. That is all, your Honour.

HIS HONOUR: Thank you very much. I need not trouble you, Ms Francois.

The applicants are married. They are citizens of India. They applied to the Department of which the first respondent is the responsible Minister for protection visas. A delegate of the first respondent refused that application on 15 July 2006. The delegate endeavoured to notify the applicants of the decision by a letter dated 15 July 2006, which was posted on 17 July 2006. It was sent by prepaid post within three working days of its date to the last address for service provided to the first respondent by the applicants for the purpose of receiving documents.

On 28 August 2006, the applicants applied to the Refugee Review Tribunal for review of the delegate’s decision. The Tribunal considered that the method employed by the delegate of notifying the applicants of the decision complied with section 494B(4) of the Migration Act 1958 (Cth) (“the Act”). Since the letter of 15 July 2006 was sent from a place in Australia to an address in Australia, the applicants were taken to have received the decision seven working days after the date of the letter of 15 July 2006, namely 26 July. This follows from section 494C(4)(a) of the Act and it would remain the case even if the letter had, in fact, never been received. As it happened, the letter was received on 25 July 2006.

Section 412(1)(b) of the Act provides that an application for review by the Tribunal must be given to it “within the period prescribed, being a period ending not later than 28 days after the notification of the decision”. Regulation 4.31(2) of the Migration Regulations prescribes the period as a period commencing on the day of notification and ending 28 days later. The Tribunal found that the period expired on 23 August 2006. Hence, the applicants’ application which was filed on 28 August 2006 was filed late. That conclusion would remain correct even if the Federal Magistrates Court was right to find that the period expired on 24 August 2006.

The Tribunal held that it had no power to extend time and also held that it was immaterial that the applicants could not speak English. It held that it had no jurisdiction. An application to the Federal Magistrates Court for judicial review failed. The federal magistrate held that the 28 –day time limit was mandatory. An appeal to the Federal Court of Australia was dismissed. Justice Flick agreed with the Federal Magistrates Court and cited a considerable amount of Federal Court authority for that conclusion.

The applicants applied for special leave to appeal to this Court within time. However, on 30 June 2008, the application was deemed to have been abandoned pursuant to High Court Rule 41.10.4 because the applicants had failed to file a draft notice of appeal and a written case within 28 days of filing the application.

On 10 July 2008, the applicants filed a summons seeking reinstatement of their special leave application. In oral argument today, the first applicant put various submissions about the present difficulties of a personal kind which he and his family are experiencing and he appealed to various humanitarian considerations. Unfortunately, it is only possible to consider the correctness of the legal position as set out in the Tribunal and in the courts below.

The applicants seek to get around the reasoning of the Tribunal and the courts below by contending first that the deemed receipt provisions of the Act are not fatal and that notification of the delegate’s decision only took place when they physically received the letter of 15 July 2006. The difficulty is that their application to the Tribunal on 28 August 2006 took place more than 28 days after the letter of 15 July was received and, as indicated earlier, an affidavit of the first applicant dated 11 September 2007 reveals that to have taken place on 25 July 2006.

Secondly, the applicants contended that section 430(1) of the Act required the letter of 15 July 2006 to be in a language which they could understand. There is no requirement of this kind, either in section 430(1) or in any other provision of the Act. Hence, even if the application for special leave were to have been granted, an appeal would have had no prospects of success.

It is therefore futile to reinstate that application and the summons must be dismissed with costs.

AT 9.44 AM THE MATTER WAS CONCLUDED