Abd19 v Minister for Immigration - [2019] FCCA 2555

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABD19 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2555

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding it lacked jurisdiction as review application not lodged within time – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.66, 476, 494C

Migration Regulations 1994 (Cth)

Cases cited:

Ali v Minister for Home Affairs [2019] FCA 1102

Beni v Minister for Immigration [2018] FCAFC 228

DFQ17 v Minister for Immigration [2019] FCAFC 64

Fernando v Minister for Immigration [2000] FCA 324

FJR18 v Minister for Home Affairs & Anor [2019] FCCA 2274

FWQ18 v Minister for Immigration & Anor [2019] FCCA 2308

Minister for Immigration v SZLIX [2008] FCAFC 17

Applicant:

ABD19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 18 of 2019

Judgment of:

Judge Driver

Hearing date:

11 September 2019

Delivered at:

Sydney

Delivered on:

11 September 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr H Gao of Australian Government Solicitor

INTERLOCUTORY ORDERS

The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 18 of 2019

ABD19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 January 2019. The Tribunal found that it did not have jurisdiction in the matter because the applicant’s review application was lodged late.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 4 September 2019.
The applicant is a citizen of Malaysia who first arrived in Australia on 17 February 2004.[1] On 15 June 2018, he applied for the protection visa, claiming to fear harm from loan sharks in Malaysia.[2] Relevantly, he provided an email address (nominated email address) for the purpose of receiving correspondence from the Minister’s Department.[3]
[1] Relevant Documents (RD) 34
[2] RD 13-14
[3] RD 5-6
On 18 September 2018, the Minister’s delegate refused the application. The notification letter and the delegate’s decision record were transmitted to the nominated email address.[4]
[4] RD 30-38
On 29 October 2018, the applicant sought review of the delegate’s decision by the Tribunal.[5] On 9 November 2018, the Tribunal invited the applicant to comment on the validity of his application for review.[6] On 15 November 2018, the applicant responded to the Tribunal’s invitation to comment. He relevantly asserted that as his agent, Mr David, failed to notify him of the delegate’s decision, he did not apply for review within the prescribed time limit.[7]
[5] RD 44-45
[6] RD 46-48
[7] RD 52-53
On 2 January 2019, the Tribunal found that it had no jurisdiction to consider the applicant’s review application.[8] The Tribunal found that the applicant had been properly notified of the delegate’s decision in accordance with the provisions of the Migration Act 1958 (Cth) (Migration Act). It found that as he had been notified of the delegate’s decision via email, under regulation 4.31 of the Migration Regulations 1994 (Cth) (Regulations), the prescribed period in which he could validly seek review of that decision ended on 15 October 2018. It considered his response to its invitation to comment but found that it did not have power to grant the applicant an extension of time to seek review of the delegate’s decision.[9]
[8] RD 59
[9] RD 60 at [1]-[8]

The present proceedings

These proceedings began with a show cause application filed on 7 January 2019. The applicant continues to rely upon that application. There is one particularised ground in it:
1.The department committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence and explanation why my appeal missed the timeframe.
2.Particulars
a)The Applicant's "Personal Statement" in support of my application for a protection visa stated
b)I feared to go back to Malaysia because:
i)      I was wanted by money shark and police.
ii)     I wanted to stand by the side of justice.
c)At the AAT:
i)      It was my agent failed to file my review application within time restriction.
ii)     The AAT failed to exercise their discretion over my case.
The applicant also filed an affidavit with his application which I received. He made a further affidavit on 15 January 2019 in which he refers to his claims for protection. I accepted that as a submission. I also have before me as evidence the book of relevant documents filed on 12 April 2019.
I invited oral submissions from the applicant this morning. He is aggrieved by the loss of his review rights before the Tribunal because he says the delay was not his fault. Unfortunately for him, the Tribunal lacks any power to extend the time limit.
The situation might be different if there was evidence of agent fraud inhibiting the Tribunal’s capacity to perform its function. The applicant says that he engaged an agent through a friend of a friend and he has never met the man. He blames the delay in going to the Tribunal on that person. He claims that the email address provided to the Minister’s Department in his protection visa application was not his but was created by the agent. It is noteworthy that the email address provided is based upon the applicant’s own name. It would be an odd thing to do to invent an email address using the applicant’s name. Neither is there any evidence that the Department’s email transmission on 18 September 2018 was unsuccessful. Further, in completing the form, the applicant answered “no” to the question whether he received any assistance in completing it.[10]
[10] RD 18
There is no evidence before the Court to suggest that the applicant has a migration agent, and the evidence is to the contrary.[11] In any event, accepting that the applicant had the assistance of another person in corresponding with the Minister’s Department, that person’s failure to notify the applicant of the date of the Tribunal’s hearing does not, of itself, amount to fraud (or consequent jurisdictional error).[12]
[11] RD 18
[12] See Minister for Immigration v SZLIX [2008] FCAFC 17 at [33]
I conclude that whether or not the applicant engaged someone to assist him on some irregular basis, there is no evidence to support a claim of agent fraud impacting on the review by the Tribunal.
The other question in this case concerns whether the notification of the delegate’s decision was made validly. The notification letter is set out on pages 30 to 33 of the book of relevant documents and is in identical terms to other cases that I have dealt with in the past two weeks. The position that I have consistently taken in relation to notification letters in that form sent by email is that I am bound by the decision of Nicholas J in Ali v Minister for Home Affairs.[13] On the basis of that decision and my own judgments which have followed it, it is not arguable that the notification of the Minister’s Department’s decision was legally ineffective.
[13] [2019] FCA 1102
I otherwise agree with the Minister’s submissions on this question and the grounds of review advanced.
The application contains a single ground of review as set out above at [7].
Insofar as the ground refers to the “department”, the delegate’s decision is a primary decision over which the Court does not have jurisdiction.[14]
[14] See s.476(2) and (4) of the Migration Act
To the extent that the reference to the “department” can be taken as referring to the Tribunal, the ground does not raise an arguable case for the relief claimed for the following reasons. First, contrary to the applicant’s contention, the Tribunal clearly considered the applicant’s response to its invitation to comment on the validity of his application.[15]
[15] See RD 60 at [5]
Secondly, the applicant’s assertion that the Tribunal failed to consider his claims for protection misunderstands the issue before the Tribunal, which was whether it had jurisdiction to consider the applicant’s review application. The Tribunal found that it did not. It is well established that the Tribunal cannot consider an invalid application.[16] The Tribunal also has no discretion to extend time to the applicant to seek review of the delegate’s decision.[17]
[16] See Fernando v Minister for Immigration [2000] FCA 324
[17] See Beni v Minister for Immigration [2018] FCAFC 228
In the circumstances of the present case, the Tribunal was correct in finding that the applicant had been properly notified of the delegate’s decision in accordance with the statutory requirements.[18] In DFQ17, the Full Federal Court found that s.66(2)(d)(ii) of the Migration Act requires that the relevant information, that is, the time in which the application for review may be made, must be clearly conveyed. Critically, Perram J found that the notification letter in that case was “piecemeal, entirely obscure and essentially incomprehensible”. In reaching that conclusion, his Honour observed that the notification letter required the recipient to calculate the time in which the application for review may be made on the basis of three separate pieces of information, spread across three pages, which appeared under different and unrelated headings.[19]
[18] Cf DFQ17 v Minister for Immigration [2019] FCAFC 64
[19] See DFQ17 at [62]
The difficulties identified by Perram J in DFQ17 do not arise (at least to the same degree) in the present case, as the notification letter dated 18 September 2018 is materially different in terms of its drafting, the matters stated in it, and its structure to the letter in DFQ17. In the present case, under the heading “Review rights”, it is stated that:
The department cannot consider your visa application any further. However, you are entitled to apply to the [Tribunal] for a merits review of this decision. An application for merits review of this refusal decision must be given to the [Tribunal] within the prescribed timeframe. The timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
(emphasis added)
It also stated, under the heading ‘Financial or case work assistance’:
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
(emphasis added)
These statements conveyed to the applicant that he had to seek merits review with the Tribunal within 28 days, which commenced on the day that he was taken to have received the letter.
Further, in DFQ17, the notification letter was sent to the appellant by pre-paid post. As a consequence, the appellant was required, amongst other things, to calculate the day on which they were deemed to have received the notification letter by reference to multiple pieces of information contained in the letter.
By contrast, the notification letter in this case was emailed to the applicant and he was deemed to have received that letter on the same day it was transmitted to him.[20] This was stated to the applicant in the notification letter. The process of calculation by the applicant that was necessary for him to determine when he was taken to have received the notification letter was simple.
[20] See s.494C(5) of the Migration Act
In Ali, Nicholas J considered a notification letter similar to the letter in the present case and found, for similar reasons to those set out above, that the notification letter complied with s.66(2)(d)(ii) of the Migration Act.[21] For these reasons, the Tribunal was correct to find that the applicant had been properly notified of the delegate’s decision.
[21] See Ali at [26]-[30]; see also FJR18 v Minister for Home Affairs & Anor [2019] FCCA 2274 and FWQ18 v Minister for Immigration & Anor [2019] FCCA 2308

Conclusion

I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant sought confirmation of his appeal rights but did not oppose an order for costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 12 September 2019