Acs18 v Minister for Immigration

[2018] FCCA 1420

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACS18 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1420

Catchwords:
PRACTICE AND PROCEDURE – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) that it did not have jurisdiction to review decision of delegate of Minister for Immigration and Border Protection not to grant applicants a Protection (Class XA) visa because the applicants applied for review more than 28 days after the day on which the applicants were notified of the delegate’s decision – in the course of the hearing of the judicial review application applicants applied for adjournment – judgment on application for adjournment reserved with a view to permitting the Court to determine whether the application for judicial review raises arguable grounds for the relief sought – application for judicial review raises no arguable case for relief – application for an adjournment refused.

MIGRATION – Application for judicial review of decision of Administrative Appeal Tribunal (Tribunal) that it did not have jurisdiction to review decision of delegate of Minister for Immigration and Border Protection not to grant applicant a Protection (Class XA) visa because the applicants applied for review more than 28 days after the day on which the applicants were notified of the delegate’s decision – whether Tribunal incorrectly concluded it has no jurisdiction to consider application for review - no arguable case Tribunal incorrectly concluded it has no jurisdiction to consider application for review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66(1), 67(1), 411(1)(c), 412, s.414(1), 494B, 494C(5)

Migration Regulations 1994 (Cth), regs.2.16, 4.31

Cases cited:

Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524
DZAFH v Minister for Immigration & Anor [2017] FCCA 387
SZQVV v Minister for Immigration and Citizenship [2012] FCA 871

First Applicant: ACS18

Second Applicant: ACT18

Third Applicant: ACU18

Fourth Applicant: ACV18

Fifth Applicant: ACW18

Sixth Applicant: ACX18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 75 of 2018

Judgment of: Judge Manousaridis

Hearing date: 23 May 2018

Date of Last Submission: 23 May 2018

Delivered at: Sydney

Delivered on: 1 June 2018

REPRESENTATION

Counsel for the Applicant: First applicant in person assisted by an interpreter on behalf of the applicants

Solicitor for the Respondents: Mr H Gao of Australian Government Solicitor

ORDERS

1. The application for an adjournment made at the hearing on 23 May 2018 is dismissed.

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 75 of 2018

ACS18

First Applicant

ACT18

Second Applicant

ACU18

Third Applicant

ACV18

Fourth Applicant

ACW18

Fifth Applicant

ACX18

Sixth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants apply for judicial review of a decision made by the second respondent (Tribunal) on 6 December 2017 that it did not have jurisdiction to review a decision made by a delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visas).

2. The applicants are a family of six. The first applicant is the father (applicant), the second applicant is the mother, and the third to sixth applicants are their children. Only the applicant made claims for protection, and the second to sixth applicants applied as members of the family unit.

3. The delegate’s decision is recorded in a document titled “Protection Visa Decision Record” (Decision) dated 29 June 2017.[1] There is no dispute that on that date the Decision was transmitted by email to the email address the applicants specified in their applications for a Protection visa. The applicants lodged their application for review by the Tribunal on 27 July 2017.[2] The Tribunal was of the view that its jurisdiction to review the Decision could arise only if the applicants applied for review of the Decision within 28 days after the applicant was notified of the Decision; but the applicant was notified of the Decision more than 28 days before the applicants applied to the Tribunal for review.

   [1] CB192-209

   [2] CB210-212

Course of judicial review hearing

1. At the hearing before me the first and second applicants, who are not legally represented, appeared with the assistance of an interpreter. As is my usual practice, I began the hearing by explaining to the first and second applicants the purpose of the hearing before me, and the procedure that would be followed. After I identified the documents the applicant filed with the Court, and admitted into evidence the Court Book, the applicant made submissions. The second applicant read a submission from a document she and the first applicant prepared, and tendered into evidence two letters that were relevant to the submission. I marked as exhibit A the submission from which the second applicant read and the letters.

2. I then explained to the applicants the nature of the issues I had to consider on their application. I explained that the question was whether the Tribunal was correct to hold that it had received the applicants’ application for review outside the period prescribed by the Migration Act 1958 (Cth) (Act) and the Migration Regulations 1994 (Cth) (Regulations), and that the time for making an application for review as provided by the Act and Regulations was strict in the sense that the Tribunal did not have power to extend the relevant period. I said that the questions I had to consider were the date on which the applicants were notified of the delegate’s decision not to grant the applicants’ Protection visas, the period by which the applicants were required to apply to the Tribunal for review, and the date on which the applicants applied to the Tribunal. It was at that stage that it became apparent that the first and second applicants wanted an adjournment.

3. The first and second applicants said they wanted an adjournment to obtain legal advice. I explained to the applicants the matters I needed to consider in determining whether to grant an adjournment. I said I needed to know why the applicants had not sought legal advice before the day of the hearing before me. I also said that I need to consider whether the applicant would be able to afford to obtain legal advice because if they could not there would be no point to adjourning the matter. I finally noted that even if a court were minded to adjourn the hearing, that was usually done on the condition that the party seeking the adjournment would pay the costs of the other party that will be thrown away because of the adjournment, and it was relevant to know whether the party seeking the adjournment would be able to pay such costs.

4. I adjourned the hearing for around fifteen minutes to permit the first and second applicants to consider whether they wished to apply for an adjournment of the hearing. When I returned to the bench the first and second applicants said they wanted an adjournment. I asked the first and second applicants why they had not sought legal advice before today. The first applicant said that he and the second applicant lacked knowledge of legal matters. I asked whether the applicants had the means to pay for a lawyer. They said they had savings of $1,500.

5. In the event I informed the first and second applicants and Mr Gao, who appeared for the Minister, that I proposed to reserve my decision on the adjournment application and continue with the hearing. I informed the applicants that in considering whether to grant the adjournment I would consider whether their substantive application has any reasonable prospects of success. I said that if I find the substantive application does have any reasonable prospects of success I would grant the applicants an adjournment and not deal with the substantive matter on a final basis. If, on the other hand, I were to conclude the applicants’ application raises no arguable case, I said I would then proceed to determine the application. I said that I proposed to follow this course because if the application did not have reasonable prospects of success, that would save the first and second applicants spending their limited savings on a lawyer.

6. Accordingly, after hearing submissions from Mr Gao, I formally reserved judgment on the application for an adjournment and, if such adjournment were not to be granted, judgment on the substantive application. For the purposes of these reasons, therefore, I will assume that the applicants should be granted an adjournment for the purposes of obtaining legal advice if their application, considered with the matters they submitted to me at the hearing, discloses an arguable case for the relief they seek. If I conclude the application discloses no arguable case, it will follow that both the application for an adjournment and the substantive application will be dismissed.

7. The remainder of these reasons for judgment are arranged as follows. First I will set out the statutory provisions that are relevant to determining whether the Tribunal was correct in concluding it did not have jurisdiction to review the delegate’s decision not to grant the applicants Protection visas. Second I will set out the Tribunal’s reasons. Finally, I will set out the grounds on which the applicants rely, and the submissions they made at the hearing before me, and consider whether they raise an arguable case that the Tribunal was wrong to conclude it did not have jurisdiction to review the delegate’s decision to refuse to grant Protection visas to the applicants.

Statutory provisions

1. The Decision falls within the class of “Part 7-reviewable decision[s]” identified in s.411(1)(c) of the Act. That means the Tribunal would have come under an obligation to review the Decision under s.414(1) of the Act if the application the applicants made to the Tribunal on 27 July 2017 could be said to have been “properly made under” s.412 of the Act.

2. An essential element of an application’s being “properly made under” s.412 of the Act is the requirement provided for by s.412(1)(b) of the Act, namely, that an application for review of a Part 7-reviewable decision must be made within the “prescribed period”.[3] The period for making an application for review of the class of Part 7-reviewable decisions referred to in s.411(1)(c) has been prescribed by reg.4.31(2) of the Regulations. In the case of an applicant who is not in immigration detention, the period is “28 days, commencing on the day the applicant is notified of the decision”.

   [3] SZQVV v Minister for Immigration and Citizenship [2012] FCA 871, at [55] where Greenwood J, speaking of s.414 of the Act said: “The enlivening of the jurisdiction is dependent upon the jurisdictional fact of whether the application was given to the Tribunal within the prescribed statutory time.”

3. In DZAFH v Minister for Immigration & Anor[4] Judge Jarrett considered the expression “commencing on the day the applicant is notified of the decision”, as it appears in reg.4.31(1) of the Regulations. Subregulation 4.31(1) is the same as reg.4.31(2) except that it applies to applicants who are in immigration detention and provides for a period of seven days, rather than 28 days, “commencing on the day the applicant is notified of the decision”. His Honour said:[5]

   The relevant period commences to run on the day the decision is notified. Moreover, s.36(1) of the Acts Interpretation Act 1901(Cth) requires that the first day be included. It provides that, where the period “is expressed to begin at, on or with a specified day”, the period is taken to include that specified day. That is consistent with the natural meaning of the language of the subsection: Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524.

   [4] [2017] FCCA 387

   [5] [2017] FCCA 387, at [45]

4. The next thing to consider is the word “notified” as it appears in reg.4.31(2) of the Regulations. It directs attention to s.66(1) of the Act. That subsection provides 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”. Section 66 must be read with s.67(1) of the Act which provides, among other things, that a decision to refuse to grant a visa is taken to be made by the Minister causing a record to be made of the decision. The effect of s.67(1) of the Act, therefore, is to require a decision made by the Minister not to grant a visa to be recorded in a document; and that the requirement under s.66(1) of the Act that the Minister notify the applicant of the Minister’s decision not to grant a visa necessarily implies that the notification is to be effected by the Minister giving the applicant the document recording the Minister’s decision.

5. This is reflected in reg.2.16(1) of the Regulations. It provides that, for the purposes of s.66(1) of the Act, reg.2.16 of the Regulations “sets out the way of notifying a person of a decision to grant or refuse to grant a visa”. Paragraph 3 of reg.2.16 provides that 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”. Section 494B specifies the methods by which the Minister, where required or permitted by the Act or the Regulations to do so, must give a document to a recipient. The effect of these provisions, therefore, is that the Minister must notify the applicant of his or her decision refusing to grant the visa by recording the decision in a document and giving the document to the applicant by one of the methods prescribed by s.494B of the Act.

6. Section 494B of the Act specifies a number of methods. Of relevance to the application before me is the method specified by s.494B(5) of the Act which (relevantly) states:

   consists of the Minister transmitting the document by:

   (a)fax; or

   (b)email; or

   (c)other electronic means;

   to:

   (d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents . . .

7. Where notification has been given by the method prescribed by s.494B(5) of the Act then, under s.494C(5), the person is taken to have received the document at the end of the day on which the document is transmitted.

8. From this summary of the relevant provisions, it will be seen that whether or not the applicants in the case before me made their application for review by the Tribunal within 28 days of their being notified of the Decision depends on what the evidence before me reveals about whether the Decision was notified to the applicants, whether it was notified to the applicant using one or more of the methods specified by s.494B of the Act and, if so, when, as a result of the application of the deeming provisions specified by s.494C of the Act, the applicants are to be taken to have been notified of the Decision, and whether the applicants applied to the Tribunal within the period of “28 days, commencing on the day the applicant is notified of the decision”.

Evidence and some findings

1. The starting point is the contact details the applicant provided in his form of application for a Protection visa. The contact details the form requested the applicant to provide are for the most part set out in the section of the form headed “Part C — Your details”. In that part of the form:[6]

   a)in the box under the words “Your current residential address”, the applicant specified an address in New South Wales (applicant’s residential address);

   b)in the box which appears under the words “Your current postal address in Australia”, the applicant included the words “same as residential”;

   c)after the printed question: “Do you agree to the department communicating with you by fax, email, or other electronic means?” the applicant placed a tick in a box that appears after the word “Yes”, and in the box positioned next to the words “E-mail address” the applicant included an email address (applicant’s nominated email address).

   [6] CB15. The form of application that was completed in relation to the other applicants contains the same details.

2. In that part of the form which is headed “Options for receiving written communications”, the applicant ticked the box after the word “Myself” which appeared under the words “All written communications about this application should be sent to: (Tick one box only)”.[7]

   [7] CB8

3. The effect of the manner in which the applicant completed these parts of the form of application for a Protection visa is that the applicant indicated, first, that all written communications about the Protection visas application should be sent to the applicant; second, that the address for correspondence was the applicant’s residential address; and, third, the Department of Immigration and Border Protection (Department) could communicate with the applicant by email to the applicant’s nominated email address.

4. There is in evidence a copy of letter dated 29 June 2017 which refers to the Decision (Decision Letter).[8] The Decision Letter is addressed to the applicant and in it the words “Transmission Method Email sent to [applicant’s nominated email address]”. In the Decision Letter the following appears:[9]

   The department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this refusal decision must be given to the AAT within the prescribed time frame. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of the 28 days.

   [8] CB192-195

   [9] CB193

5. There is no question that the applicants received the Decision by email. That is apparent from the form of application for review by the Tribunal the applicants completed and lodged with the Tribunal on 27 July 2017.[10] In a section headed “Decision to be reviewed”, the applicants provided the following information:

   [10] CB210

Date of decision	29/06/2017
. . . .
Departmental decision notification date	29/06/2017
Departmental decision notification method	Email

1. Further, in paragraph (a) of the particulars to the ground of application the applicants stated the Department “notified us of a decision to refuse our Protection Visa by email on 29 June 2017”.

2. On 27 July 2017 the applicant applied to the Tribunal for review of the delegate’s decision. On 1 December 2017 in response to the Tribunal’s invitation to the applicant to comment on the validity of his application to the Tribunal for review of the Decision, the applicant stated as follows:[11]

   I am writing to request that the decision to reject our application for review on the grounds that it was one day or 24 hours late be revoked. I counted the time base the 28 days basing on a 24 hour clock starting on the 29-30 June to be the first day and the 26-27th July to be day twenty-eight (28th) day.

   I feel that the decision to reject the application for review on the grounds of receiving the appeal papers one day late is extremely unfair and prejudicial.

   [11] CB221

Tribunal’s reasons

1. The Tribunal applied the reasoning of Judge Jarrett in DZAFH v Minister for Immigration & Anor.[12] The Tribunal was of the view that, based on the material before it, the Department dispatched by email on 29 June 2017 the Decision Letter and the Decision, and that in accordance with the statutory requirements the applicants were notified of the Decision on 29 June 2017.[13] The Tribunal was of the view that the prescribed period to apply for review ended on 26 July 2017, and the applicants applied to the Tribunal on 27 July 2017, a day later.[14]

   [12] [2017] FCCA 387

   [13] CB225, [4]-[5]

   [14] CB225, [5]

1. The Tribunal referred to the applicants’ response to the Tribunal’s invitation to comment on the validity of the application for review to the Tribunal. It noted that the last day of lodgement must be calculated in accordance with the law; that the basis on which the applicants calculated the last day of lodgement is not relevant; and that it is understandable the applicants feels it would be extremely unfair and inhumane for the application for review not to be accepted because it was a day late, but the Tribunal has no power to extend the time limit.[15]

   [15] CB225, [7]

2. The Tribunal concluded it had no jurisdiction because the applicants had not made their application for review until 27 July 2017, which was not accordance with the relevant legislation, and therefore the Tribunal had no jurisdiction in this matter.[16] The Tribunal noted there is no denial of natural justice in this regard, and that it has no power or discretion to waive the prescribed period or to conduct a review where a review application had not been lodged within the prescribed period of time, even in circumstances such as the applicants’ where the application was lodged only a day late.[17]

   [16] CB225, [8]

   [17] CB226, [8]

Grounds of application

1. The applicants’ ground of application is as follows:

   1. The Administrative Appeals Tribunal reached a mistaken conclusion that our application for review was lodged outside the prescribed period of time.

   Particulars

   a) The Department of Immigration & Border Protection notified us of a decision to refuse our Protection Visa by email on 29 June 2017.

   b) We lodged an application for review on 27 July 2017.

   c) The Tribunal found that the prescribed period to apply for review ended on 26 July 2017;

   d) This is incorrect as s.494C(5) of the Migration Act states:

   a. If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

   e) The Department of Immigration also has a policy included in their PAM3 for establishing when the 28 days begins:

   Special guidance for documents sent by electronic means

   a.   A document sent by electronic means (for example, fax or email) is taken to have been received at the end of the day it was transmitted. In practice, the first day of the time for applying for merits review (or providing a response) is the day after which it is transmitted. Accordingly, if the time period is calculated in days (rather than minutes or hours), the exercise of calculating the time period is the same for documents sent by fax or email as for documents given by hand. For example, a notice of refusal is sent on Monday 4 May 2009 by email. The notice of refusal will be taken to have been received at midnight on 4 May 2009. The time period for applying for review will commence on the next day, that is, on Tuesday 5 May 2009.

   f) This means the Tribunal incorrectly began counting 28 days from 29 June 2017 instead of 30 June 2017.

   g) If you begin counting the 28 days from 30 June 2017 (which is the correct method) the last day of the prescribed timeframe to apply for review is 27 July 2017 which makes my application valid and means the Tribunal has jurisdiction to review my matter.

2. The particulars to the ground rely on two matters for claiming the Tribunal incorrectly concluded that the period by which the applicants were required to lodge an application for review ended on 26 July 2017. One is the terms of s.494C(5) of the Act. That is not arguable. That subsection identifies the date by which a person is taken to have received a document that is transmitted by email, that date being the date the document is transmitted. There is no question, and the ground of application does not claim otherwise, that the applicants are taken to have received the Decision on 29 June 2017.

3. The second matter on which the particulars rely for claiming the Tribunal incorrectly concluded that the period by which the applicants were required to lodge an application for review ended on 26 July 2017 is the statements from the Department policy manual (PAM3). The ground particularly relies on the example given in PAM3 that if a refusal is taken to have been received on 4 May 2009 the “time period for applying for review will commence on the next day, that is, on Tuesday 5 May 2009”. It is not arguable that this statement is relevant to construing the clear terms of reg.4.31(2) of the Regulations or could reasonably lead reg.4.31(2) of the Regulations being construed as providing that the 28 day period commences, not “on the day the applicant is notified of the decision”, but on the day following that day.

4. The ground stated in the application filed by the applicants discloses no arguable case that the Tribunal was incorrect in concluding that the period by which the applicants were required to lodge an application for review ended on 26 July 2017. That, then, leaves me to address the submissions the applicants made at the hearing before me.

5. As I have already noted, the second applicant read out a submission. The second applicant stated “[w]e feel we have been discriminate against” because it has come to the first and second applicants’ knowledge that “a Protection Visa Application Refusal notice given on the same day as ours, which was 29^th of June 2017, was given 35 days to apply for Administrative Appeal [sic] Tribunal while my family was only given 28 days”. The notice to which this submission relates is in evidence. It is a letter from the Department notifying the addressee (not any of the applicants) of a decision refusing the grant of a Protection visa. The letter refers to a 35 day period; but it is the stated period after which the addressee’s bridging visa would cease. The letter does not arguably represent that the addressee had 35 days within which to apply for review of the decision referred to in the letter. Even if it did, it is not arguably relevant to whether reg.4.31(2) of the Regulations provides that the period within which an application for review to the Tribunal must be made was “28 days, commencing on the day [the applicants were] notified of the decision”.

Conclusion and disposition

1. The grounds on which the applicants rely in their grounds of application and in what they submitted to me at the hearing disclose no arguable case that the Tribunal was incorrect to conclude that the 28 day period within which the applicants were required to apply to the Tribunal for review of the delegate’s decision ended on 26 July 2017, and that, because the applicants did not apply to the Tribunal for review by 26 July 2017 the Tribunal did not have jurisdiction to review the application for review which the applicants made on 27 July 2017. There is nothing in the material before me that could reasonably suggest that for reasons the applicants have not articulated that the Tribunal was arguably wrong to conclude it did not have jurisdiction.

2. It follows, therefore, that the application for an adjournment should be dismissed because, given the application discloses no arguable case, there would be no utility in granting the adjournment. It also follows that, because applicants have no arguable case for the relief they seek, their application for judicial review must be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 31 May 2018